Regulating Hepatitis C: Rights and Duties Preventing Hepatitis C Transmission in Australian Adult Correctional Settings

Jack Wallace, Marian Pitts, Stephen McNally, Ian Malkin, Meredith Temple-Smith, Anthony Smith and Michael Levy. November 2010

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Regulating Hepatitis C: Rights and Duties Preventing Hepatitis C Transmission in Australian Adult Correctional Settings



Jack Wallace, Marian Pitts, Stephen McNally, Ian Malkin, Meredith Temple-Smith, Anthony Smith and Michael Levy. November 2010

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This research was funded by the Australian Health Ministers Advisory Council, Priority Driven Research Program through the National Health and Medical Research Council.

Acknowledgements The authors would like to thank the following for their support of this research: • A  ssociate Investigators, Annie Madden, Australian Injecting and Illicit Drug Users League; Helen Tyrell, Hepatitis Australia, and John Ryan, ANEX • Clinical Associate Professor Michael Levy • State and territory correctional authorities • State and territory health authorities

© Australian Research Centre in Sex, Health and Society, La Trobe University, December 2010 Australian Research Centre in Sex, Health and Society (ARCSHS) La Trobe University 215 Franklin Street Melbourne Victoria 3000 Australia Telephone: 03 9285 5382 Facsimile: 03 9285 5220 Email: [email protected] Website: www.latrobe.edu.au/arcshs Monograph Series Number 79 ISBN 978 192 1377 952. Suggested citation: Wallace, J., Pitts, M., McNally, S., Malkin, I., Temple-Smith, M., Smith, A. and Levy, M. (2010) Regulating Hepatitis C: Rights and Duties. Preventing Hepatitis C Transmission in Australian Adult Correctional Settings. Monograph Series Number 79. Melbourne: La Trobe University, the Australian Research Centre in Sex, Health and Society.

Contents Executive Summary

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Section 1 – Overview

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Background

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Methodology

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Project Scope

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Section 2 – Preventing Hepatitis C Transmission in Adult Correctional Settings: Proposing A Regulatory Framework.

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Human Rights Approach

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Transparency

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Access to health services

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Strategic Coherence

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Non-regulatory issues

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Section 3 – Jurisdictional Frameworks

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International and National frameworks.

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Australian Capital Territory (ACT) Corrective Services

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Legislation

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Internal Regulation

40



Reviews

41



Strategies

43

Corrective Services New South Wales (NSW)

46



Legislation

48



Internal Regulation – Operations Procedures Manual

49



Reviews

52



Strategies

54

Northern Territory Correctional Services, Department of Justice

56



Legislation

57



Reviews

58



Strategies

59

Queensland Corrective Services

60



Legislation

61



Internal Regulation

62



Reviews

64



Strategies

67

Department for Correctional Services, South Australia

69



Legislation

70



Internal Regulation

71



Reviews

72



Strategies

73

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Tasmania Prison Service, Department of Justice

75



Legislation

76



Reviews

77



Strategies

79

Corrections Victoria

80



Legislation

82



Internal Regulation

83



Agreements

85



Reviews

85



Strategies

86

Department of Corrective Services, Western Australia

88



Legislation

89



Internal Regulation

90



Case Law

93



Strategies

95



Reviews

96



Other Reviews

100

Section 4 – Key informant interviews

105

Corrections legislation and health

105

Correctional culture and health

106

Non health or corrections regulation

109

Learning about legislation

109

Implementing legislation

110

Standards and guidelines

113

Delivering Health Services

114

Departments

118

Staff and Unions

119

Hepatitis C Prevention

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Harm Reduction

122



Bleach

124



Hepatitis C Testing

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Providing Education

126



Toiletries and Haircutting

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Needle and Syringe Programs

128

Section 5 – Conclusions

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Appendix 1 – Regulations – Informing Best Practice

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Appendix 2 – Hepatitis C: Civil Law Proceedings Using the Common Law as a Regulator

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References

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Executive Summary Hepatitis C is a correctional issue. Thirty-five percent of inmates across Australia are infected with hepatitis C, and the incidence of new infections occurring in correctional settings is significantly greater than found in the community. This high prevalence and incidence of hepatitis C within correctional settings provides challenges to controlling hepatitis C within the community as a whole. Correctional settings have been described as an ‘incubator’ of hepatitis C infection. The Regulating Hepatitis C: Rights and Duties project identified, documented and reviewed regulations relating to the prevention of hepatitis C transmission within adult correctional settings throughout Australia. Interviews were held with a broad range of informants who described the context and effectiveness of the implementation of these regulations. This report proposes a regulatory environment for adult correctional services in which hepatitis C prevention interventions can be embedded. Governments through legislation make correctional authorities responsible for the environment in which inmates live. While the names, details and stated aims of these legislative arrangements differ between jurisdictions, the cultural imperative is similar: fundamentally, the enforcement of security. Within a correctional framework, providing health services is an exceptional, rather than essential, duty of care. The breadth of regulation across Australia affecting hepatitis C prevention interventions within adult correctional settings is vast. It includes specific primary (Acts) and secondary (Regulations) legislation, and internal guidelines including policy, manuals, operating procedures, standing orders, standards, instructions and rules. Other regulatory forces affecting hepatitis C prevention initiatives in correctional settings include government policy; reviews of correctional services; policy from unions representing correctional officers; the media; health care worker ethics, and agreements made between stakeholders including employment agreements and prison outsourcing contracts. Hepatitis C prevention initiatives are implemented in correctional settings within a broader social, political, legal and philosophical environment. The administration of correctional settings is the responsibility of states and territories. This fundamentally affects the regulatory framework, and how correctional services deliver hepatitis C prevention and other health initiatives within correctional settings. While the health and well-being of people who move in and out of correctional settings is acknowledged as being far lower than that experienced by the majority of the community, many inmates receive better health care in correctional settings than outside these settings. Standard Guidelines for Corrections in Australia is a national statement developed by Correctional Administrators describing correctional services standards. This document states that inmates ‘have access to evidence based-health services… comparable to that of the general community.’ The Office of the Inspector of Custodial Services in Western Australia contends a needs-based health services for inmates is more appropriate than a community equivalent. The understanding and provision of health services in correctional settings is rarely described in terms broader than the provision of clinical treatment. This disregards the World Health Organisation (WHO) description of health as ‘a complete state of physical, mental and social well-being, and not merely the absence of disease or infirmity.’ The WHO definition highlights an understanding of health that recognises that the environment in which people live plays an essential role in maintaining health. Health promotion within correctional settings, where it is exists, is often under-resourced and undertaken by correctional rather than health staff.

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Alcohol and drug issues in correctional settings are primarily addressed as security rather than health concerns. This replicates community norms, with supply reduction interventions undertaken by security services, and demand and harm reduction interventions being implemented by health services. Strategic correctional service responses from to reducing drug related harm are often opaque and inconsistent with government policy. Hepatitis C prevention programs within correctional settings have often been implemented as a result of commitment, unexpected opportunities and individual interpretation of legislation, rather than as a result of good public health practice. There is little consistency across jurisdictions in the hepatitis C prevention programs that have been implemented. While the regulated distribution of needles and syringes is the primary form of evidence-based hepatitis C prevention intervention available in the community, unregulated and hazardous needle and syringe distribution occurs in correctional settings. While needle and syringe programs are not regulated in correctional settings, regulatory initiatives have been implemented that reduce drug-related harm. The use of non-injectable drugs, such as cannabis reduces the risk of hepatitis C transmission and other drug or injecting-related harms. Regulation has been implemented in several jurisdictions that reduce penalties for the use of non-injectable drugs within correctional settings. This pragmatic harm reduction response acknowledges that drug use occurs in prisons, and reflects the capacity for a regulatory framework with a security outcome and a clear health benefit. Political support for ‘tough on crime and/or criminals’ style interventions has public health implications. This includes larger numbers of people being exposed to hepatitis C within correctional settings. This is a key factor for Indigenous communities who experience vastly greater incarceration rates and who are often more affected by legislative changes criminalising street-based activity. The increasing proportion and number of Indigenous prisoners conflicts with recommendations arising from the Royal Commission into Aboriginal Deaths in Custody. Fundamental to implementing hepatitis C prevention interventions in correctional settings is an acceptance that hepatitis C transmission is an avoidable event, that people with health expertise are best placed to lead in implementing hepatitis C prevention interventions in partnership with correctional services, and that permission for providing health interventions within correctional settings is the responsibility of correctional legislation and authorities. The Regulating Hepatitis C: Rights and Duties report proposes a regulatory framework in which health interventions including hepatitis C prevention initiatives can be embedded within a correctional environment. The framework uses a human rights approach which assumes that the loss of liberty and participation in the broader community constitutes the breadth of punishment, and that inmates have the same human rights available to other members of the community including the right to health and life. Effectively implementing a human rights framework in correctional settings acknowledges that inmates are entitled to a community or a needs-based standard of health care. The framework promotes transparency in the operation of correctional services. Transparency allows issues that are broader than security, the key determinant of success for correctional authorities, to be acknowledged and addressed. Transparency in and of itself will not reduce hepatitis C transmission in correctional settings, but reflects a culture of accountability, and a willingness to challenge assumptions about how correctional authorities and services operate.

Correctional settings are environments where a significant minority, and in many cases most of the population, is infected with hepatitis C. An environment of such high risk argues for a rigorous application of hepatitis C prevention interventions detailed in the National Hepatitis C Strategy including regulated needle and syringe distribution and drug treatment programs. At a policy and program level, hepatitis C prevention interventions need to comprehensively and effectively reflect the criteria established by correctional administrators and which are described in the Standard Guidelines for Corrections in Australia. A model of regulation that effectively provides for the prevention of further hepatitis C transmission in correctional settings needs to be supported within a coherent strategic framework that incorporates human rights, corrections and public health. This framework acknowledges that inmates move between correctional settings and the community, and that the health of people in correctional settings fundamentally affects community health. Excluding inmates from direct access to Medicare significantly affects entitlements to, and the provision of health services in correctional settings. It fundamentally affects the capacity of correctional services to provide clinical health care as access to the universal system of health care is denied in these settings. It is one of the many areas where implementing a human rights framework in correctional regulation provides for health service delivery as an entitlement, and by doing so directly and demonstrably improves the health of inmates. Reducing hepatitis C transmission in correctional settings in Australia requires a paradigm shift in the relationship between correctional authorities, inmates and health services. An effective regulatory regime provides permission for correctional services to incorporate human rights and embed health care as essential to the services they provide.

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Section 1 – Overview Background Hepatitis C is a significant public health issue with more than 259,000 Australians estimated to be infected with the virus. Transmitted by blood to blood contact, hepatitis C is a chronic infection which can severely affect quality of life and is the leading cause of liver transplant in Australia. The greatest risk for transmission of hepatitis C comes from the sharing or re-use of needles, syringes and other drug injecting equipment which have been contaminated by infected blood. Other routes of blood-to-blood transmission include tattooing, body piercing and needle-stick injuries. Imprisonment is recognised as an independent risk factor for hepatitis C infection. Australian inmates suffer a disproportionate level of poor health and the inmate population as a whole is described by Levy as typically male, young, Aboriginal, ill, socially disadvantaged and isolated.1 Common life experiences of inmates include sexual victimisation, physical and emotional maltreatment and suicide attempts by significant others.2 The Australian Bureau of Statistics reported in December 2009: • T  here were 29,317 sentenced and unsentenced inmates in Australia at 30 June 2009, an increase of 6% over the previous 12 months • 93% of inmates were men • 2  5% of all inmates were Indigenous, with Indigenous people being 14 times more likely to be imprisoned that non-Indigenous people. • Indigenous prisoner numbers increased by 10% between 2008 and 2009, with the greatest proportion of Indigenous people imprisoned occurring in the Northern Territory (82%) • 55% of inmates have previously been imprisoned.3 The National Centre in HIV Epidemiology and Clinical Research estimates that between 9,000 and 14,000 current inmates held in prison at a point in time during 2005 had been exposed to hepatitis C, with 7,000 to 11,000 living with chronic hepatitis C infection.4 The National Prison Entrants Bloodborne Virus and Risk Behaviour Survey 2004 and 2007 describe an overall hepatitis C prevalence among prison entrants of 35%, ranging between 21% in Western Australia to 42% in New South Wales, with higher hepatitis C prevalence among Indigenous inmates (43%) than non-Indigenous inmates (33%).5 The survey supports the development of prevention initiatives, particularly for first-time inmates, who are less likely to have been exposed to hepatitis C. Hepatitis C incidence in correctional settings is higher than that found in the community. In one New South Wales study, incidence of hepatitis C transmission was described as 34.2 per 100 person years, or one in three inmates who inject drugs becoming infected with hepatitis C per year whilst imprisoned.6 A presentation at the 6th Australasian Viral Hepatitis Conference reported a hepatitis C incidence of 33.9 per 100 person years for people who inject who were continuously imprisoned.7 Haber et al described transmission of hepatitis C occurring in a correctional setting through sharing of injecting equipment, laceration from barber’s shears and laceration from physical assault.8 National, state and territory health authorities recognise the link between incarceration and exposure to hepatitis C, with inmates or correctional settings noted as a priority population,setting or challenge in jurisdictional hepatitis C strategic responses. The National Hepatitis C Strategy 2010 – 2013 identifies people in correctional settings as a priority population.9 The increased risk of exposure to hepatitis C infection is a result of the high prevalence of hepatitis C, the high proportion of people entering prison for drug related offences, and the use of un-sterile injecting equipment within correctional settings. The National Hepatitis C Strategy states that reducing further transmission remains a key challenge and that ‘the combination of the transmission of hepatitis C in custodial settings and prisoner recidivism presents a challenge to controlling hepatitis C infection both within these settings and in the broader community.’

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Regulating Hepatitis C: Rights and Duties is an Australian Research Centre in Sex, Health and Society project funded by the Australian Health Ministers Advisory Council, with project outcomes being: 10

• T  he establishment of an Australia-wide audit of all regulations, guidelines and codes of practice which govern harm reduction strategies and risk practices associated with hepatitis C transmission • Identification of where regulations are missing and where conflicts and inconsistencies exist between different regulations • D  ocumentation of how effectively implemented these regulations are within different localities (city/ urban, regional, rural and remote locations) and within different risk settings • Identification of ideal practices and to document how best practice can be achieved. Data collection for the project was extensive and is presented as two areas of enquiry – correctional settings and needle and syringe programs. This report focuses on regulations affecting hepatitis C transmission within adult correctional settings. This report contains six sections: 1. A overview describing project background, methodology and project scope 2. A proposal for a regulatory framework to prevent hepatitis C transmission in correctional settings 3. A  summary of key legislation in each Australian state and territory affecting hepatitis C prevention initiatives, and the context in which they are implemented 4. A thematic analysis of key informant interviews 5. A conclusion 6. Appendices. The model of legislation for preventing hepatitis C transmission in correctional settings is based on evidence gathered for the project, and highlights specific pieces of legislation whose implementation reduces the likelihood of hepatitis C transmission. The model seeks to use regulation existing in at least one jurisdiction and highlights where regulation is absent or deficient.

Methodology Correspondence was sent to each state and territory agency responsible for administering correctional services in their jurisdiction. The correspondence detailed the aims and objectives of the project, and sought the support of the agency for the project to undertake activities within the jurisdiction. All correctional authorities, with the exception of the Northern Territory, supported the project, with several jurisdictions requesting the completion of an ethics application before support was obtained. Ethics applications were developed and approved by La Trobe University Human Ethics Committee, and by correctional authorities in New South Wales, Western Australia, Victoria and Justice Health in New South Wales. No response was received from the Northern Territory in response to our original request for support, nor to follow-up correspondence. An initial audit of legislation affecting the transmission of hepatitis C within correctional settings was undertaken in 2006, and updated to the end of 2008 and fully reviewed for completeness and timeliness in January 2010. The audit identified regulatory instruments and policy based documents affecting the prevention of hepatitis C transmission in correctional settings. Data from each jurisdiction has been collated and described within jurisdictional boundaries. Additional policy interventions at international and national levels have been identified and described that provide the policy context for the prevention of hepatitis C transmission within correctional settings.

A total of 53 national, state and territory informants were recruited on the basis of their expertise, professional responsibilities and leadership in key areas of corrections and public health sectors. Informants worked in either correctional (15) or health departments (12); non government organisations providing social and/or health services within correctional settings (9) and to released inmates (4); Indigenous health organisations (5) and other experts (8). An invitation to participate in the study was sent to potential informants along with an information sheet, followed by a telephone call to ascertain interest and negotiate participation. No informants declined the offer of an interview. Three interviews were undertaken by phone and the remainder were conducted face-to-face. The interviews were recorded, fully transcribed and verified, and subjected to an iterative coding process. Themes arising from the interviews were determined and described after progressively establishing key issues. Given the national perspective of the project, and to reduce the potential for identifying specific individuals who participated in the study, only issues with national or cross jurisdictional implications are reported. A draft report was sent to all jurisdictional correctional authorities and Justice Health (New South Wales) with an invitation to comment on the findings or highlight factual inaccuracies contained in the report. Comments were received from the majority of jurisdictions, and the report was amended where appropriate.

Project Scope This section of the report summarises the broad range of data sources used to investigate regulations and their effect on the prevention of hepatitis C transmission in adult correctional services. The project used a broad perspective from the Oxford Dictionary definition of regulation as being ‘a rule prescribed for the management of some matter.’ Reynolds describes the role of the law related to public health as supporting ‘the public health process… do the things that are necessary to help people to live longer and healthier lives.’10 Regulation provides the space and describes the boundaries in which activities can legally occur. Correctional settings are highly regulated. More than 220 documents were identified that provide the regulatory framework in which hepatitis C prevention interventions are implemented in adult correctional settings. The documents ranged from: discrete legislation authorising the establishment, and describing the operational scope of correctional settings; internal regulatory instruments; public health strategies seeking to reduce the impact of hepatitis C or illicit drug use; agreements between correctional authorities and health or correctional service providers; reviews of correctional services, and employment contracts. The delivery of adult correctional services is the responsibility of each state and territory, with each jurisdiction implementing specific primary (Acts) and secondary (Regulations) statutes governing the operation of correctional services. This legislation authorises responsibility for taking specific action within correctional settings. Clauses in each of these pieces of legislation that provide the context of the delivery of hepatitis C prevention interventions in each jurisdiction have been identified in this report. While primary and secondary legislation provides the immediate context in which hepatitis C prevention interventions are implemented in correctional settings (Table 1), other legislation affects the operation of these settings or interventions. Some legislation is explicit in its reference to correctional settings, while others relate more to the health sector or to populations at greater risk of imprisonment. In the case of the Australian Capital Territory and Victoria, human rights legislation details the rights and responsibilities of the citizen and the state.

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Table 1: Primary and Secondary Correctional Legislation 12

Jurisdiction

Primary Legislation

Secondary (Subordinate) Legislation

ACT

Corrections Management Act 2007

NSW

Crimes (Administration of Sentences) Act 1999

Crimes (Administration of Sentences) Regulation 2008

NT

Prisons (Correctional Services) Act 2006

Prisons (Correctional Services) Regulation 1999

Queensland

Corrective Services Act 2006

Corrective Services Regulation 2006

South Australia

Correctional Services Act 1982

Correctional Services Regulations 2001

Tasmania

Corrections Act 1997

Corrections Regulation 2008

Victoria

Corrections Act 1986

Corrections Regulations 2009

Western Australia

Prisons Act 1981

Prison Regulations 1982

Within each jurisdiction internal guidelines including policy, manuals, operating procedures, standing orders, standards, instructions and rules, provide the regulatory framework in which custodial, health and hepatitis C prevention interventions are implemented (Table 2). Vast differences occur between jurisdictions in the scope of these frameworks, including the approval processes. One jurisdiction has approved more than 200 individual internal policies, while another has more than 300 individual internal policies separated into four different forms, each with different approval protocols.

Table 2: Internal Regulation Jurisdiction

Internal Regulation

ACT

Corrections Management Policy

NSW

Operations Procedures Manual

NT

N/A

Queensland

Policy Procedures

South Australia

Policies, Service Specifications and Standard Operating Procedures

Tasmania

Prison Service Standing Orders

Victoria

Standards for the Management of Women Prisoners in Victoria Correctional Management Standards for Men’s Prisons in Victoria Director’s Instructions (public prisons) Sentence Management Manual. Operating Instructions (private prisons) Justice Health, Health Policy

Western Australia

Director General’s Rules Policy Directives Operational Instructions Health Services Policy, Protocols and Procedures Standing Orders

There are significant differences in the public availability of information from each of the jurisdictions, including reviews of correctional services. For example, there is limited publicly available information in South Australia describing or detailing regulations operating within their correctional settings, compared to Queensland and Western Australia where there are considerable amounts of publicly available information. Numerous reviews of correctional services over the past 20 years provide insight into the relationships between the correctional and health sectors. They demonstrate the development and investment in the delivery of health services to inmates and the context in which health issues are broadly, and hepatitis C prevention initiatives specifically, are implemented. At a national level, the major review of correctional settings occurred with the Royal Commission into Aboriginal Deaths in Custody as a result of the deaths of 99 Aboriginal and Torres Strait Islander people in custody between 1980 and 1989. In relation to health, the Royal Commission found inadequate health services in some prisons, and that duty of care to inmates was owed ‘by virtue of the fact that, by being in custody, prisoners are deprived of access to normal medical care.’ The Royal Commission recommended, in part, that the health care available to persons in correctional institutions should be of an equivalent standard to that available to the general public (Recommendation 150). At a state and territory level, reviews of correctional services and particularly those relating to the delivery of health services including hepatitis C prevention interventions have occurred as: 1. Independent one-off investigations of correctional services 2. Systemic investigation processes 3. Independent one-off investigations commenting on inmate health issues. Independent one-off investigations of correctional services delivery have occurred in Northern Territory, Queensland, Tasmania, Victoria and Western Australia. In most cases, these investigations have resulted in fundamental changes to the framework in which correctional services are delivered, including health services. The breadth and scope of change is substantial and includes expanding rudimentary medical services in correctional settings through to re-writing of legislation and establishing new departmental arrangements. The Western Australian Office of the Inspector of Custodial Services is the only independent external reviewer of the correctional system in Australia and inspects each correctional, detention and court custody centre and prescribed lock-up in Western Australia at least once every three years. The inspectorate has produced 69 reports (as at November 2010) including the Thematic Review of Offender Health Services (2006). Other jurisdictions, including Queensland with the Office of the Chief Inspector, or Victoria with the Office of Correctional Services Review, provide a correctional review process and do not report publicly. Other systemic processes established to investigate correctional services have commented on the delivery of health services to inmates include Ombudsman’s offices in each jurisdiction and health services review authorities. An example of an independent one-off investigation affecting health service delivery in correctional systems is the Queensland Office of the State Coroner investigation into an accidental overdose of a prisoner in 2004. In this instance the coroner recommended implementing a needle and syringe program within correctional settings given the ‘inability of the Department of Corrective Services to keep prisons drug free.’ Who provides health services within correctional settings and how is determined by each state or territory (Table 3). In most jurisdictions, health services to inmates are the responsibility of the jurisdictional health department, either provided by the department or outsourced.

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Table 3: Health Service Delivery Responsibility 14

Jurisdiction

Department

Health Service Provider

ACT

ACT Health

Corrections Health Program

NSW

Department of Health

Justice Health

NT

Dept of Health and Community Services

Outsourced

Queensland

Queensland Health

Offender Health Services

South Australia

Central Nth Adelaide Health Service, SA Health

SA Prisoner Health Services

Tasmania

Department of Health and Human Services

Correctional Primary Health Service

Victoria

Department of Justice, Justice Health

Various (outsourced)

Western Australia

Department of Corrective Services

Health Services Directorate

The authority responsible for delivering health services to inmates in correctional settings highlights fundamental issues relating to the status of these health services and has been the focus of national and international investigation. The most recent change in Australia relating to the authority responsible for providing health services to inmates occurred in Queensland in 2008 when Queensland Health, through the Offender Health Services took responsibility from Queensland Corrective Services for health services provision. The stated rationales for this decision were that the prisoner population experiences a ‘vastly worse health status’ than others in the community; that health services are not the core business of correctional authorities and that political and managerial decisions about health should be decided by clinicians.11 In Western Australia, the effectiveness of health services provided by the Department of Corrective Services to inmates has been the subject of an independent investigation by the Office of the Inspector of Custodial Services who reported on health service delivery in its Thematic Review of Offender Health Services (2005).12 The Inspector noted the experience in the United Kingdom where the advantages of health authorities, rather than correctional authorities, in providing health services included greater trust between prisoners and health staff, improved continuity of care and that independent medical staff are able to argue for improvements in public health matters. These arguments are reiterated in a 2009 review by the West Australian Department of Corrective Services of clinical service provision.13 This review describes systemic problems in providing health care to inmates by the Department of Corrective Services including • ‘Barely adequate’ corporate support for health services within the Department of Corrective Services, with a ‘negative impact’ on the needs of clinicians • P  oorer pay for clinicians working within corrections in comparison to those working within health, chronic understaffing and professional isolation of staff • Challenges for health services with continual changes in clinical accreditation • T  hat the Department of Health has the expertise to manage communicable disease, which is described as the most ‘dangerous’ health risk, particularly within an overcrowded environment • T  he different philosophical approaches of corrections and health providers, with health service decision making influenced by security and cost; health promotion interventions such as bleach distribution not supported by correctional staff, and the lack of adequate infrastructure for health services.

Standard Guidelines for Corrections in Australia (2004) developed by Correctional Administrators from each state and territory, ‘represent(s) a statement of national intent’ and describes ‘outcomes or goals to be achieved by correctional services rather than a set of absolute standards or laws to be enforced.’ In relation to health services, the guidelines propose: • E  very prisoner is to have access to evidence-based health services… comparable to that of the general community • P  risoners with an infectious disease should be managed by health services to minimise the possibility of contamination of the prison environment • ‘The confidentiality of medical information shall be maintained’ to preserve privacy, although it can be provided on a ‘need to know’ basis with the consent of the prisoner; when it is in the interest of the prisoner, or where ‘confidentiality may jeopardise the safety of others or the good order and security of the prison.’14 In an area where different regulatory frameworks exist between jurisdictions, the Australian Government takes little leadership or coordination within the sector. In contrast, health policy development and subsequent implementation of health interventions in Australia comes as a result of cooperation between federal and state and territory governments. One important example illustrating the impact of the lack of federal involvement within correctional settings is reflected in the Standard Guidelines for Corrections in Australia (2004). This document was developed by state and territory correctional authorities and notes in its introduction that the ‘Minimum Standard Guidelines for Prisons have remained largely unchanged’ from the 1984 edition. The lack of federal leadership in the correctional sector results in minimum standards rather than targets being a guiding standard. Several state and territory-based strategic frameworks support hepatitis C prevention initiatives being implemented in correctional environments. (Table 4) These are generated variously by health, correctional health, and correctional authorities and seek to reduce the impact of drugs and communicable diseases in correctional settings. Only one jurisdiction uses a broader inmate health strategy in which communicable diseases and drug use are included within a broader health context.

Table 4: Strategic Framework Jurisdiction

Health – Hepatitis Strategy

Corrections – Drugs

ACT

Adult Corrections Health Services Plan

Alcohol and other Drug Programs

HIV/AIDS, Hepatitis C and STI strategic framework Northern Territory

Defers to Standard Guidelines

Defers to Standard Guidelines

NSW

Hepatitis C Strategy

Drug Related Issues policy

Justice Health Hepatitis C Strategy

Defers to National Drug Strategic Framework 2004-09

Queensland

Queensland HIV, Hepatitis C and STI Strategy

Tackling Drug Abuse and Addiction, Changing Lives in Queensland Prisons

South Australia

Hepatitis C Action Plan

Alcohol and Drugs policy (unsighted)

Tasmania

Hepatitis C Action Plan

Tasmanian Prison Service Drug Strategy

Victoria

Hepatitis C Strategy

Prison Drugs Strategy

Western Australia

Hepatitis C Action Plan

Justice Drug Plan Drugs and Alcohol Action Plan Managing Drugs in Prison

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As noted previously, people in correctional settings are one of three priority groups within national hepatitis C strategies. The priority of this group is reflected in hepatitis C strategic responses in Western Australia and South Australia, and in correctional settings being described as priority contexts for the implementation of hepatitis C prevention interventions in Victoria, New South Wales, Queensland, Tasmania and the Australian Capital Territory. No hepatitis C strategy exists in the Northern Territory. The Regulating Hepatitis C: Rights and Duties report highlights the substantial body of data detailing the legislative, strategic and policy frameworks in which correctional services should operate, including independent reviews of the operations of correctional services. An expectation is built from this evidence that there are coordinated and effective responses to prevent the transmission of hepatitis C in correctional settings. This perspective is challenged by another data source used in this investigation, the interviews with informants from each Australian state and territory. Quotes from these informants describe how this expectation is undermined. The interviews highlight that the culture of security embodied by correctional services fundamentally inhibits the provision of health care services. A lack of coherence between correctional legislation and health, was identified – “there’s… nothing combining them.” Legislation “backs up” correctional services culture and was seen by several informants as an “obstacle” to providing health services. In relation to hepatitis C prevention, the utility of legislation was fundamentally questioned – “(legislation) is virtually irrelevant.” Much of the legislation providing for health service delivery within correctional settings was noted as being out of date. In one jurisdiction, the primary legislation provides for a “single medical officer” across a state-wide correctional system, or tokenistic with an informant in another jurisdiction noting that in legislation covering correctional settings, “if you put in the word ‘health’ it only comes up once.” Hepatitis C prevention initiatives have been implemented within correctional settings although this has occurred without any national or even internal jurisdictional consistency. Legislation provides the legal context in which hepatitis C prevention interventions are implemented and the role of correctional staff, and managers of correctional settings, were seen as pivotal in the effectiveness of this implementation – “it’s really at the discretion of the prison and the prison officers.” Unregulated needle and syringe distribution occurs in correctional settings and is “controlled by the prisoners, it’s highly dangerous, it’s highly unsterile, it’s clandestine, it’s secret, and it’s very, very dangerous.” The cultural norms of correctional authorities supersede a broader responsibility of providing safe environments, where prisoners would have access to a community standard of hepatitis C prevention interventions. While government generated legislation is recognised as one form of regulation, behaviour and processes are regulated by a wide range of sources and factors. Informant interviews showed other regulatory forces affecting hepatitis C prevention include correctional officers’ unions, government policies, the media, health care worker ethics, health related strategies, and agreements made between stakeholders including employment contracts. This is highlighted in Section Four of this report. Several informants noted the role that civil law proceedings can have as either a direct or indirect regulator of hepatitis C prevention within correctional settings. These proceedings incorporate common law requirements and those reflected in relevant legislation linked to common law principles. A paper, Hepatitis C – Civil Law Proceedings using the Common Law as a Regulator, authored by Prof Ian Malkin, one of the Principal Investigators of this project, is included as Appendix 2 of this report.

The paper notes that ‘instituting civil law actions which incorporate common law principles can have a regulatory effect.’ Even the threat of litigation using common law principles (as amended by statute) can be a ‘significant means’ through which compliance with standards of behaviour can be attained, including the effective implementation of hepatitis C prevention interventions within correctional settings. In providing an overview of the role of civil law claims using common law principles based on precedent (as well as relevant statutory modifications), Malkin notes: • T  he ad hoc nature of civil law claims, as courts are only able to reactively address specific and precise legal issues that are brought before them. However, in the course of deciding cases, courts can address broader issues and these broader issues can be of interest, and influence policy makers • T  he significant recent legislative changes affecting common law principles as a result of states and territories seeking to decrease liability claims, by prescribing how courts must resolve some aspects of personal injury actions • T  he elements of a negligence action such as determining a duty of care, including the legal implications and limits of this determination, and whether foreseeable kind of harm was caused by the breach of responsibility. If a claimant succeeds, damages will be awarded • T  he challenges in taking civil action against statutory authorities given their establishment in legislation • T  he impact of the illegal nature of injecting and of the drugs being injected on civil claims, and the disparate effects of this illegality within different jurisdictions • How damages are assessed. The following section of this report proposes a model of regulation for preventing further hepatitis C transmission in correctional settings. The model describes regulation at a broader level of correctional and health service delivery, and is based on data gathered for the project.

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Section 2 – Preventing Hepatitis C Transmission in Adult Correctional Settings: Proposing A Regulatory Framework. This section of the report proposes a regulatory framework that supports a correctional environment in which hepatitis C prevention interventions are embedded. It assumes that access to health services for inmates is both an entitlement and a human right; that correctional authorities accept that the transmission of hepatitis C within correctional settings is an event to be avoided, and one which is most effectively prevented by using evidence based public health interventions. Adult correctional services are unique settings where inmates live in an environment of high prevalence and are at greater risk of exposure to hepatitis C, and where their capacity for choice is largely controlled by correctional authorities. Developing a regulatory model for Australian correctional settings acknowledges the current variation and inconsistency in implementing hepatitis C prevention interventions across Australian states and territories. The model of regulation for preventing further hepatitis C transmission in correctional settings is based on evidence gathered for this project and highlights specific pieces of regulation that provide a environment in which health services including hepatitis C prevention initiatives are best implemented. The model seeks to use forms of regulation that already exists in at least one jurisdiction and highlights where regulation is absent. A tabulated list of regulations informing the development of this framework is included as Appendix 1.

Human Rights Approach An assumption is made by this project that the punishment of imprisonment is solely related to the loss of liberty. People who are imprisoned lose their liberty and are separated from participating in the broader community. A human rights approach accepts that inmates have the same human rights available to other members of the community, including the right to life. Human rights are most clearly articulated in Australia in the Australian Capital Territory and Victoria where human rights legislation exists. The current legislative regime for correctional settings focuses on providing a secure environment. In practice this means providing health care services to inmates is not embedded in correctional regulation or practice but provided as an addendum when permitted by correctional authorities. The effective implementation of a human rights framework in correctional settings acknowledges the entitlement of inmates to a community standard or needs-based standard of health care rather simply than a concession. In the Presentation Speech for the Human Rights Bill 2003, the Chief Minister of the Australian Capital Territory noted the role the Human Rights Act played in applying the International Covenant on Civil and Political Rights into the Australian Capital Territory context. The object of this bill is to give recognition in legislation to basic rights and freedoms… By passing this bill we commit ourselves to minimum standards in our law making. It is a bottom line, a floor below which we should not fall.15 The ACT Corrections Management Act 2007 acknowledges human rights in its preamble which states ‘the criminal justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 and international law.’ Section 12 of the Act describes ‘minimum living conditions,’ including ‘access to suitable health services and health facilities.’ Organisational policy supports human rights legislation with the purpose of the ACT Corrections Management (Human Rights) Policy 2007 being to observe ‘the human rights of persons accommodated and working in a correctional centre, consistent with the Human Rights Act 2004.’ The policy states that the organisation seeks to meet or exceed ‘minimum standards for the treatment of prisoners in accordance with the internationally agreed framework of human rights standards.’ These human rights can be limited if ‘demonstrably justified.’

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In relation to hepatitis C transmission within correctional settings, human rights legislation details community and legal expectations of the relationship between the state and its citizens, particularly with inmates, whose environment is highly controlled and regulated by the state. Dr Helen Szoke from the Victorian Equal Opportunity and Human Rights Commission described Human Rights Acts as providing the ‘filter through which the work of our government and public entities should be viewed.’16 Section 38 of the Victorian Charter of Human Rights and Responsibilities Act 2006 states that ‘it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.’ In discussing the relationship of human rights legislation to correctional settings and hepatitis C prevention, John Paget, then Director of the ACT Prison Project Office in a presentation to the Crime and Justice Network at the University of New South Wales, noted section 9 of the ACT Human Rights Act 2004. This section states that every individual is provided with the right to life, which was described as including access to sterile injecting equipment within correctional settings. This perspective was supported by an audit of the Australian Capital Territory correctional centres undertaken by the Australian Capital Territory Human Rights Commission. The report of the audit notes illicit drugs being found in correctional settings throughout the world, with injectable drugs and injecting and tattooing equipment found in Australian Capital Territory remand centres. The audit reported that needle and syringe programs have been established and operate in prisons in several countries, and have minimised harm associated with injecting. The audit states that denying access to the program for prisoners ‘may be viewed as inhumane.’ The review made a substantial number of recommendations, and in relation to hepatitis C prevention recommended a pilot ‘needle and syringe exchange’ for the Alexander Maconochie Centre with consideration given to a safe injecting room. The audit was clear that health services ‘must’ be equivalent to those available in the broader community. The Victorian Charter of Human Rights and Responsibilities Act 2006 states in section 22(1) that ‘all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.’ The Charter of Human Rights is not specifically noted in the Victorian Corrections Act 1986, although in section 47(1) (f) of the Act, prisoners have the ‘right to have access to reasonable medical care and treatment necessary for the preservation of health.’ A human rights framework is used by the Western Australian Office of the Inspector of Custodial Services in their Code of Inspection Standards. The Inspectorate states that human rights are essential to good correctional management whether viewed from the perspective of inmates, prison staff or the public interest. The Code states: The observance of human rights is integral to good prison management and the most effective and safest way of managing prisons. Human rights are a universal, inalienable and indivisible birthright of all members of the human family. A prisoner’s fundamental human rights are not forfeited because of their imprisonment and are in fact limited only in so far as is demonstrably necessitated by the fact of imprisonment.17 Using a human rights approach to providing correctional services acknowledges and implements international treaties such as the International Covenant on Civil and Political Rights in Providing Humane Treatment while in Detention, and the International Covenant on Economic, Social and Cultural Rights which describes the right to the highest attainable standard of physical and mental health.

Transparency Transparency in and of itself does not reduce hepatitis C transmission within correctional settings, but it reflects a culture of accountability and a willingness to challenge assumptions about how correctional services operate. It provides for the discussion of issues to be acknowledged and addressed that are broader than maintaining security, the key focus and determinant of success of correctional authorities. Two different types of transparency in the operation of correctional authorities were noted through the project as affecting the environment in which hepatitis C prevention interventions are implemented. There are significant differences between jurisdictions with regard to transparency and the level of publicly available information describing the standards applied within their correctional services. This is evident with the differences between South Australia, in which limited information about the structures and policies within corrections is publicly available, and New South Wales where the Operations Procedures Manual is only available through Freedom of Information requests, compared with Queensland and Western Australia where the vast majority of internal policy documents are publicly available through their websites. Making information available in and of itself does not make for good correctional practice, but provides the public with the capacity to know what standards apply in correctional settings and how these standards should be met. Section 14 of the ACT Corrections Management Act 2007 permits the development of policies and operating procedures which are ‘notifiable instruments’ that are ‘available for inspection.’ Another form of transparency relates to the independent inspection of correctional services. While several jurisdictions provide for this process of inspection in legislation and practice, only the Office of the Inspector of Custodial Services in Western Australia is an independent statutory body providing external scrutiny of the operational of Western Australian correctional services. The Inspector of Custodial Services inspects each prison, detention centre, court custody centre and prescribed lock-up in Western Australia at least once every three years and provides publicly available reports of these inspections. The Office aims to improve public confidence in the justice system, reduce re-offending, and ensuring the justice system provides value for money. Other jurisdictions provide for independent monitoring through the Office of Correctional Services Review (Victoria), Office of the Chief Inspector (Queensland) or the Correctional Services Advisory Council (South Australia). While seeking transparency or monitoring of the operations of the correctional authorities, these authorities report to the respective department or to the relevant minister and their reports are not publicly available.

Access to health services Fundamental to implementing hepatitis C prevention interventions in correctional settings is an acceptance that hepatitis C transmission is an event to be avoided; that hepatitis C prevention is best provided by people with expertise in delivering health-related interventions, and that permission for providing health interventions falls within the responsibility of correctional legislation and authorities. An increased understanding of inmate health issues internationally, a recognition of human rights, and acknowledgement that inmates move between correctional settings and the broader community has required health service provision within correctional settings to change significantly over the past three decades. Each jurisdiction provides for access to inmates for health or medical services in the primary correctional legislation. Table 5 summarises the legislative requirement for the provision of health services to inmates as described in current legislation (at Jan 10).

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Table 5: Correctional health service provision legislation 22

Jurisdiction

Legislation

Health Service Provision

ACT

Corrections Management Act 2007, S21

The executive responsible for the Public Health Act 1997 appoints a doctor in each correctional centre.

Corrections Management Act 2007, S12(j)

Detainees must have access to suitable health services and health facilities

Crimes (Administration of Sentences) Act 1999, S72A

An inmate is supplied with attendance, treatment and medicine necessary for preserving the health of the inmate, of other inmates and any other person.

Crimes (Administration of Sentences) Act 1999, S236A

Justice Health provides and monitors health services; prevents infectious diseases; keeps medical records; provides advice to the Commissioner.

Prisons (Correctional Services) Act 2006, S27

The Minister may appoint a medical practitioner to be a visiting medical officer for a prison or police prison.

Prisons (Correctional Services) Act 2006, S71

A prisoner shall have access to a visiting medical officer

Corrective Services Act 2006, S283

One doctor for each prison.

Corrective Services Act 2006, S284

The doctor is ‘required by the chief executive to perform what the doctor is qualified to perform.’

South Australia

Correctional Services Act 1982, S23

Provides for an annual medical assessment of each prisoner sentenced for more than 6 months.

Tasmania

Corrections Act 1997, S29 (1) (f)

Prisoners have the right of access to medical care and treatment necessary for preserving health

Corrections Regulations 2008 S8

Medical officer to inspect a prison at least once every 3 months and report on risks to the health of staff or prisoners and detainees.

Victoria

Corrections Act 1986, S47 (f)

Prisoners have the right to access reasonable medical care and treatment necessary for the preservation of health

Western Australia

Prisons Act 1981, S95A(1)

The chief executive officer is to ensure that medical care and treatment is provided to the prisoners in each prison.

NSW

Northern Territory

Queensland

At a legislative level in Australia, there are two models for appointing a medical officer to address the health needs of inmates – by the correctional authority or by the jurisdictional health authority. In most jurisdictions, the correctional authority is delegated to appoint the medical officer. There are several implications for health service provision being regulated and implemented through correctional authorities. • W  hether correctional authorities have the expertise to effectively recognise the skill set required by health practitioners to address the needs of people with demonstrably poorer health status than others within the community • C  an correctional authorities effectively manage health, including clinical staff, including conflicts between the ethical expectations of medical staff and requests from their line managers? One example relates to the Queensland Corrective Services Act 2006 where under section 284, the doctor must examine and treat prisoners at the prison to which the doctor is appointed and ‘required by the chief executive to perform what the doctor is qualified to perform.’ This includes the chief executive being authorised under section 39 direct a doctor to conduct a body search of a prisoner. This maybe unrelated to the provision of medical care for the prisoner and raises ethical issues including of the use of medical staff for security purposes. • T  he management of health services by correctional services means that the provision of health services occurs within a security framework, in which the environment and power dynamics and issues are more important than individual health care needs. • T  he appointment of a medical officer by a correctional authority assumes that adequate professional support is provided by this correctional authority. Two jurisdictions regulate in correctional legislation that health authorities provide health services within correctional settings. In the Australian Capital Territory, the Chief Health Officer is responsible for appointing a medical officer to the correctional service, while in New South Wales legislative responsibility for health service provision to inmates falls to Justice Health, a Statutory Health Corporation established under the Health Services Act (NSW) 1997 and funded by New South Wales Health. Both the Australian Capital Territory and New South Wales acknowledge the vulnerable health status of the prison population by specifically legislating that the medical authority is responsible for preventing the transmission of disease within correctional settings. In the Australian Capital Territory, a significant inclusion in relation to hepatitis C prevention is Section 21 of the Corrections Management Act 2007 where a doctor, providing ‘health services to detainees, and protect the health of detainees (including preventing the spread of disease at correctional centres),’ must be appointed at each correction centre. In New South Wales, the equivalent clause in the Crimes (Administration of Sentences) Act 1999 in section 236A details one function of Justice Health being to prevent the transmission of infectious disease ‘in, or in relation to, correctional centres.’ Both jurisdictions provide legislation permitting communication between the correctional health and security staff. In the Australian Capital Territory, the legislation notes that ‘the doctor may give written directions to the chief executive’ in relation to ‘protective health interventions’ while subsection 5 allows the chief executive to refuse written direction from the doctor on the grounds of security and good order. In Queensland, permission for communication between security and health staff is provided for under internal regulation, rather than legislation with Communication Protocols for Queensland Corrective Services and Queensland Health Centre Staff.

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Correctional settings are environments in which a significant minority, and in some cases a majority of the population are infected with hepatitis C. An environment of such risk argues for ensuring a rigorous application of hepatitis C prevention interventions detailed in the National Hepatitis C Strategy. Correctional authorities have developed and implemented a range of interventions seeking to reduce hepatitis C transmission, with some notable exceptions. Some of these interventions specifically target reducing hepatitis C transmission, while others support an environment which reduces the risks of hepatitis C transmission. The interventions highlighted through regulation and identified in interview with key informants include: • Harm Reduction interventions • Hepatitis C Testing • Provision of information including peer education • Staff development. Regulatory responses to the transmission of hepatitis C in correctional settings have been piecemeal and largely inconsistent. They have not occurred primarily as a result of good public health practice, or of the strategic development and implementation of interventions, but often as a result of individual commitment, unexpected opportunities and individualised interpretation of legislation. The following table, (Table 6) while describing the hepatitis C prevention initiatives implemented in correctional settings, hides many variations in the availability or depth of implementation hepatitis C related interventions detailed in internal guidelines.

Table 6: Hepatitis C prevalence and prevention interventions Jurisdiction

Hepatitis C Prevalence

Education

Testing

Safe Sex

Differential penalties

Bleach

ACT

33%*

3

3

3

N/A

3

NSW

42%

3

3

3

3

3

NT

9%

N/A

3

N/A

N/A

N/A

Queensland

3

3

53%

3

3

N/A

S Australia

33%*

Under review

3

N/A

3

N/A

Tasmania

25%*

3

3

N/A

N/A

N/A

Victoria

41%

3

3

N/A

3

3

W Australia

21%

3

3

3

N/A

3

* Based on low numbers

Drug use and the possession of implements to administer drugs are banned in all correctional settings in each jurisdiction. In New South Wales, this regulation occurs within the Crimes (Administration of Sentences) Regulation 2008 where section 139 makes drug possession illegal while section 140 makes it illegal for a prisoner to administer a drug to herself or himself or another person or consent to being administered with a drug. It is illegal for a prisoner to possess any needle, syringe, smoking accessory or other implement intended for use in the administration of a drug under section 141 of the regulations. In New South Wales there is a unique and additional regulation in section 27C of the Summary Offences Act 1988 making it illegal for a person to ‘introduce a syringe into a place of detention.’

In spite of this regulation, every correctional authority recognises that drug use, including injecting drug use, occurs within correctional settings. While imprisonment reduces the amount of injecting, given the unregulated nature of needle and syringe distribution within a population with a high prevalence of hepatitis C and who have a history of risk behaviour, each injecting episode carries a high risk of transmission. The community standard of hepatitis C prevention, access to regulated needle and syringe programs, is not legally available in correctional settings. Needle and syringe distribution does occur in correctional settings, but the unregulated nature of this distribution substantially increases the risk of blood borne virus transmission. The use of non-injectable drugs, such as cannabis, within correctional settings reduces the risk of hepatitis C transmission, as well as overdose. Regulation providing differential penalties for the use of illicit drugs in the correctional setting provides a pragmatic harm reducing response, and acknowledges that drug use occurs in prisons. Differential penalties for specific kinds of drug use have been implemented in several jurisdictions with South Australia detailing penalties in legislation, and Queensland and Victoria in internal regulation. Regulations such as these reflect the capacity for security based regulations to achieve a clear positive public health outcome. The use of bleach as a disinfectant for used injecting equipment is not a community standard. The unregulated distribution of injecting equipment in an environment of high prevalence of hepatitis C provides the rationale for the use, and dependence of correctional services on the distribution of bleach as a cleaning agent for used injecting equipment. Some barriers to the accessibility of bleach to inmates include prison authorities or correctional staff, rather than health staff being responsible for its distribution. Bleach sachets in Victorian correctional settings provide instruction in the cleaning of used injecting equipment, while the Queensland Corrective Services 2006 Drug Strategy allows bleach availability through medical centres in ‘an informal and consistent manner, without trigger for investigation or other repercussion.’ Tattooing and body piercing in correctional settings constitutes behaviour with substantial risk for hepatitis C transmission. In most jurisdictions, tattooing is banned with its description in regulation as a prison offence or equivalent. As with illicit and injecting drug use in correctional settings, this banning has not resulted in the behaviour being stopped nor has it stopped hepatitis C transmission occurring through the practice. The guidelines for Australian correctional settings developed by the Hepatitis C Subcommittee of the Ministerial Advisory Committee on AIDS, Sexual Health and Hepatitis support the use of the Regulation of Infection Control in the Body Art Industry in Australia and New Zealand to guide program development in this area.18 Several jurisdictions allow for access to drug substitution programs. Within Queensland, access to methadone is described in internal policy and should be provided ‘at the same standard available to the community’ although its drug strategy states that it is only available for remandees, people on short sentences and pregnant women. In contrast, in Victoria, methadone is available to all eligible inmates with eligibility determined primarily on clinical grounds. An evaluation of drug substitution program undertaken within New South Wales correctional settings showed that it was successful in reducing the risk of hepatitis C infection, mortality and re-offending.i In an environment where the specific population has a high prevalence of hepatitis C, with less access to health services and a range of unresolved health issues, the need to ensure that a comprehensive approach to hepatitis C is implemented. This includes ensuring that all inmates have unrestricted access to their own razors, nail clippers and toothbrushes, and that barbering practices reflect good public health practices as identified in public health codes of practice.

i Personal correspondence, NSW Corrective Services, 24 September 2010

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The distribution of condoms, lubricant and dental dams provides the means for inmates to reduce the risk of hepatitis C transmission within an environment of high hepatitis C prevalence. Safe sex material for inmates needs to be available and accessible, and permission for this distribution is included in internal regulation in the jurisdictions where these materials are available. The NSW Operations Procedures Manual recognises regulations providing for the ‘availability and disposal, unauthorised possession, use and disposal of condoms in correctional centres.’ The policy notes that all inmates are entitled to use condom/dental dam vending machines and disposal units. Most jurisdictions allow for the provision of information to inmates about blood borne viruses including hepatitis C, although significant differences exist between jurisdictions about how this is implemented. Peer based education of inmates is provided in Queensland, Western Australia and Victoria. Queensland Health has implemented an Indigenous Peer Education Program at Lotus Glen Correctional Centre – ‘a structured peer-based program addressing the complex issues surrounding drugs, alcohol and the transmission of blood-borne viruses and sexually transmissible diseases within the context of the correctional system.’19 In a reflection of the lack of consistency within specific correctional systems, the Queensland Corrective Services Prisoner Information Booklet provides basic information for prisoners upon entry into the system. Health related information in the booklet refers to medical examination upon entry; counselling; suicide prevention; illness or injury, and exercise. The booklet contains no information for people about preventing the transmission of hepatitis C when incarcerated. The primary form of health service provision in correctional settings is clinically based, with health promotion and prevention information only sporadically provided. The Hepatitis C Services Review by Justice Health in New South Wales supports previous review findings of gaps in the provision of health promotion information within correctional settings. The review notes that in New South Wales, the Corrective Services NSW HIV and Health Promotion Unit is the major provider of health promotion within corrections, with this unit having only three staff providing education across the state-wide correctional system. This is contradicted by New South Wales Corrective Services who report that this unit was disbanded in 2004, and that the Offender Services and Programs staff deliver harm reduction education programs in each correctional centre.ii Hepatitis C testing is available in correctional settings, although with only partial application of the National Hepatitis C Testing Policy. The National Hepatitis C Testing Policy highlights the rationale and processes to be used in diagnostic testing of people at risk of infection with hepatitis C. This testing should be voluntary, confidential, with informed consent and with a pre and post test discussion about the implications of the result. Legislation in the Northern Territory, allowing for the use of force for testing, and the correctional legislation in Tasmania, which specifically omits the provision of pre test and post test discussion as required in HIV legislation, demonstrably contradicts community standards. Confidentiality is recognised in public health as a key issue, particularly in responding to infections in which risk behaviours and the people who participate in these risk behaviours are marginalised. Confidentiality in health service provision, including hepatitis C test results, provides the safety necessary to enable people to access these services and disclose all issues and behaviours affecting their health status. While having hepatitis C testing available for inmates, correctional services in some jurisdictions require that they be informed of an inmate with an infectious disease. The rationale for this regulation could be that the identification of such individuals provides safety for the correctional workforce. Given the prevalence of hepatitis C in correctional settings, any safety related to the open disclosure of an inmate’s hepatitis C status is illusory. Within the communications protocols between Queensland Health and Queensland Corrective Services, health information remains confidential while providing for situations where information can be provided ‘in broad terms or in the form of practical advice.’ ii Personal communication, NSW Corrective Services, 24 September 2010

Correctional services have been placed in a position by government policy to be the custodians of many people with hepatitis C. These services often do not have the resources, knowledge or expertise, to respond effectively to the large numbers of people with hepatitis C under their care. They also are not able to effectively prevent transmission to inmates who are not (yet) infected with hepatitis C within these high prevalence settings. As noted previously, in many correctional settings the majority of inmates are infected with hepatitis C. One cornerstone of infection control practice is to assume that everyone is infectious. A fair assumption for correctional authorities would be to assume that all inmates are infected with hepatitis C, and that their workforce is provided with the knowledge and tools to respond accordingly. Northern Territory WorkSafe developed an information bulletin providing examples of safe work practices for police, prison officers, other workers in correctional facilities and emergency response workers.20 The bulletin identified prison officers at greater risk of infection with HIV and hepatitis B given they ‘work in a potentially hostile environment’ where they deal with ‘assaults (between prisoners, and between prisoners and prison officers), self-mutilation by prisoners, traps set by prisoners (such as needles and syringes containing blood taped to locks), and objects concealed by prisoners (such as needles and syringes containing blood).’ The bulletin highlights the need for workers to assume all blood or body fluids are infectious; that they receive training in infection control and about blood borne viruses, and use personal protective equipment. An observation noted in interviews with informants was that health staff working in correctional settings needed to possess an understanding of correctional legislation and culture, while no reciprocal need was considered to exist for correctional staff whereby they would appreciate health related legislation, professional responsibilities and ethics. The Correctional Management Standards for Men’s Prisons in Victoria provide for the training of custodial staff, and the education of prisoners about infectious diseases and prevention strategies. Other jurisdictions including Western Australia and Tasmania proactively provide training to correctional staff around issues related to hepatitis C.

Strategic Coherence A model of regulation for preventing further hepatitis C transmission within correctional settings needs to be implemented and supported both within a coherent strategic framework and in broader standards incorporating corrections, human rights, and public health. At a policy level, regulatory interventions need to comprehensively respond to the criteria established in the Standard Guidelines for Corrections in Australia, ‘where every prisoner is to have access to evidence-based health services… comparable to that of the general community.’ The primary national policy response detailing interventions to reduce the transmission of hepatitis C to the community is detailed through National Hepatitis C Strategies. These strategies provide the framework in which a nationally agreed and comprehensive response to hepatitis C is determined. The National Hepatitis C Strategy 2010-2013 highlights ‘people in custodial settings’ as one of several populations who engage in risk behaviours and who are at greater risk of infection with hepatitis C. The strategy notes that this population intersects with other populations at greater risk of hepatitis C infection including people who inject drugs and Aboriginal and Torres Strait Islander people who inject drugs. Within state and territory level hepatitis C strategic responses, these priority populations or settings are acknowledged.

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The relationship between hepatitis C transmission and injecting drug use provides another intersection with government policy as articulated in the National Drug Strategy. This strategy calls for a ‘comprehensive approach’ to managing drug related harms in correctional settings. The National Corrections Drug Strategy 2006 – 2009 uses the outline of the National Drug Strategy which provides a ‘framework for a coordinated, integrated approach to addressing drug-related issues in Australian adult correctional and juvenile justice facilities and related services.’ The strategy notes the increasing level of ‘entrenched’ drug use among prison entrants and a hepatitis C prevalence in prisons estimated to be up to 17 times greater than in the general community. The objectives of the National Corrections Drug Strategy 2006–2009 include: • Prevent and reduce the supply of drugs in correctional facilities • R  educe risk behaviours associated with drug misuse by offenders in correctional and community-based facilities and services • R  educe drug-related harm for the families and wider communities of people under the care and supervision of correctional and community-based facilities and services. One of the six key principles outlined in the strategy is to ensure a balance between demand, supply and harm reduction measures ‘depending on what the evidence suggests.’21 There is clear evidence that hepatitis C incidence is higher in correctional settings than within the broader community, and that unregulated needle and syringe distribution occurs. As is the case with the implementation of the Standard Guidelines for Corrections in Australia and the absence of an accompanying evaluation mechanism,iii the National Corrections Drug Strategy does not include any monitoring process. Drug strategies of jurisdictional correctional authorities identify the National Drug Strategy as the framework for the development and implementation of drug related activity within their jurisdiction. Interventions use supply reduction and demand reduction interventions which reduce, although not eliminate, access to drugs, such as by searching visitors, and in the case of the Australian Capital Territory providing within legislation permission to search correctional staff, and drug testing of inmates. Demand reduction interventions include access to drug detoxification; drug substitution programs; counselling and drug free units. The Australian National Council on Drugs found that supply reduction interventions were expensive and had not been evaluated, while demand reduction interventions were sporadically implemented across jurisdictions; some were relatively inexpensive, and that the evaluations, when undertaken, were favourable.22 Based on this advice, it is clear that comprehensive demand reduction programs need to be implemented across correctional settings in all jurisdictions with no restrictions on access. The programs need to be responsive to the demands on the services being provided, including eliminating restrictions on pharmacotherapy places. Clearly articulated statements concerning the implementation of harm reduction interventions are generally missing from correctional drug policies. An example of this occurs in one jurisdiction, where harm reduction strategies are described as enshrining ‘a zero-tolerance approach to drug use within a context of harm minimisation.’ Abstinence at an individual level is one aim of national drug strategies, and a zero-tolerance approach at a population level is not supported by any drug strategies. The differences between the various levels and aims of national and state and territory drug strategies, provides opportunities for evading responsibility for the effective implementation of these strategies. Privately operated correctional services have been established in New South Wales, Queensland, South Australia, Victoria and Western Australia.

iii In April 2010 Correctional Administrators agreed to commission a new working group to review the Standard Guidelines for Corrections in Australia on a regular basis. Personal communication, Justice Health (Vic), 24 August 2010.

The contractual obligations for private operators of correctional services are not necessarily framed using government policy, and in some cases directly contradict current government policy. An example of this occurs in Western Australia in an agreement detailed in the Acacia Prison Services Agreement where Section 2.20 of Schedule 4 of the contract relates to the ‘management of illicit substances.’ The contract characterises ‘drugs and drug use as a pernicious influence’ in prisons and states the need for ‘a zero tolerance approach to illicit drug use and all associated behaviours’ (section 1.11 jv). In spite of the contradiction between the need for a ‘zero tolerance approach,’ the contractor is to acknowledge ‘the content of the Justice Drug Plan May 2003 and its strategies including those of reducing supply, reducing demand and reducing harm.’ Zero tolerance is not mentioned in the Justice Drug Plan. In another example where health services for inmates defers solely to the provision of clinical services, the South Australian government in its ‘memorandum of information’ for the (then) development of a new private prison details its expectation of the provision of inmate health care as relating solely to the procurement and dispensing of medication.

Non-regulatory issues Several issues were highlighted during data collection which fundamentally affects the context in which correctional settings operate. These include: • Increasing rates of imprisonment • Health care models • Resourcing, including access to Medicare • Role of the federal government Imprisonment in and of itself has been recognised as a risk factor for hepatitis C infection. Reducing the numbers of people being incarcerated reduces their exposure to hepatitis C. This is a key factor for Indigenous communities already experiencing vastly greater incarceration rates and who are often more affected by legislative changes which criminalise street based activity. ‘Tough on crime’ policies increase the exposure of people to a high-risk environment, particularly when prison population increases occur without commensurate expansion of the capacity of correctional settings to respond effectively to these changing policies. The increasing proportion and number of Indigenous inmates is testimony to the failure of governments to adopt recommendations arising from the Royal Commission into Aboriginal Deaths in Custody. Indigenous people are greatly over-represented in correctional settings. Recent increases in the proportion of South Australia inmates who are Indigenous is of concern, particularly having regard to the role prisons play as an incubator of hepatitis C infection and the higher prevalence of hepatitis C amongst Indigenous people. The description of services for inmate health generally aligns with the provision of medical or clinical services. This omits any role for health promotion or permission to improve the health status of inmates. It ignores the World Health Organisation (WHO) understanding of health as a state of physical, mental and social wellbeing, not just the absence of disease or infirmity. The WHO definition highlights an understanding of health that recognises that the environment in which people live plays an essential role in maintaining health.

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The purported philosophical standard for the delivery of health services is that these services are provided to inmates should be equivalent or comparable to those available in the community. The health status of people who move in and out of correctional settings is generally far lower than the majority of the community. By way of contrast, the Western Australian Office of the Inspector of Custodial Services notes that the provision of needs-based health services to inmates is more appropriate than a community equivalent. This supports reframing inmate health from an intervention which is begrudgingly provided to one which responds to inmates’ rights. This project found that the exclusion of inmates to Medicare significantly affects their entitlement to, and the provision of, health services in correctional settings. This fundamentally affects the capacity or willingness of correctional services to provide a community equivalence of clinical health care as access to the universal system of health care is denied in these settings. It is one of the many areas where the implementation of a human rights framework within correctional regulation provides for health service delivery as an entitlement, and in doing so would directly and demonstrably improve the health of inmates. In an area with different regulatory frameworks among jurisdictions, the Australian Government takes little responsibility to ensure that state or territory legislation fulfils international obligations in the operation of correctional settings or of the provision of health services within correctional settings. A regulatory framework permitting the effective implementation of hepatitis C prevention interventions acknowledges that the primary purpose of correctional services is to establish and maintain security while incorporating human rights and embedding health care as fundamental to the services they provide the community.

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Section 3 – Jurisdictional Frameworks International and National frameworks. Individual states and territories are responsible for the operation of correctional systems in their jurisdiction, with no overarching federal coordination. One impact of the lack of this coordination is there are no uniform standards for providing health services to Australian inmates at either a systems or at an outcome level. International frameworks affecting health care access within correctional settings were described in a presentation from Helen Watchirs, the Australian Capital Territory Human Rights and Discrimination Commissioner to a forum facilitated by the Australian Injecting and Illicit Drug Users League. These frameworks included: • International Covenant on Civil & Political Rights (ICCPR) – rights to life, humane treatment in detention • International Covenant on Economic, Social and Cultural Rights (ICESCR) – right to the highest attainable standard of physical & mental health • U  nited Nations Basic Principles for the Treatment of Prisoners – P9 ‘prisoners shall have access to the health services in the country without discrimination on the grounds of their legal situation’ • U  nited Nations Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment • International Guidelines on HIV/AIDS & Human Rights (1996) UNAIDS & OHCHR – G4 ‘prison authorities should provide prisoners with access to the means of prevention (condoms, bleach & clean injecting equipment).’ In addition, Kate Dolan (2007) from the National Drug and Alcohol Research Centre at the University of New South Wales identifies the international instruments and declarations applying to drug use, HIV and correctional settings include: • Standard Minimum Rules for the Treatment of Prisoners (United Nations, 1955) • R  ecommendation No R (98)7 of the Committee of Ministers to Member States Concerning the Ethical and Organisational Aspects of Health Care in Prison (Council of Europe, 1998) • W  orld Health Organisation (WHO) Guidelines on HIV Infection and AIDS in Prisons (World Health Organisation, 1993) • International Guidelines on HIV/AIDS and Human Rights (United Nations, 1996) • D  eclaration of Commitment – United Nations General Assembly Special Session on HIV/AIDS (United Nations, 2001).23 In terms of access to health care to inmates, the WHO Guidelines on HIV Infection and AIDS in Prisons state All prisoners have the right to receive health care, including preventative measures, equivalent to that available in the community without discrimination, in particular with respect to their legal status and nationality.24

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The major review of correctional settings occurring at a national level was the Royal Commission into Aboriginal Deaths in Custody as a result of the deaths of 99 Aboriginal and Torres Strait Islander people in custody between 1980 and 1989. In relation to health, the Royal Commission found in part that: • T  he duty of care owed by custodians to those in their care extends to the provision of proper medical care and assistance by virtue of the fact that, by being in custody, prisoners are deprived of access to normal medical care • T  he provision of health care within correctional settings, while a challenge will ‘go a long way’ to preventing deaths in custody • T  he focus of correctional health care is on ‘curative rather than educational and promotional health care,’ unlike what has occurred in the broader community with the inclusion of preventative models of health care • T  he ‘essential’ need for correctional health services to be independent of correctional services, given the differing and ‘conflicting interests of health and custodial services’ • T  he need for health services to be cognisant and responsive to the health and cultural needs of Aboriginal people. The Royal Commission recommended, in part, that the health care available to persons in correctional institutions should be of an equivalent standard to that available to the general public (Recommendation 150). The Standard Guidelines for Corrections in Australia was revised in 2004,25 and describes ‘outcomes or goals to be achieved by correctional services rather than a set of absolute standards or laws to be enforced.’ The document, developed by Correctional Administrators, notes that the guidelines ‘represent a statement of national intent, around which each Australian State and Territory jurisdiction must continue to develop its own range of relevant legislative, policy and performance standards that can be expected to be amended from time to time to reflect ‘best practice’ and community demands at the state and territory level.’ One ‘guiding principle’ from the Guidelines relates to health service provision and illicit drug responses. In relation to health services the guidelines note: • E  very prisoner is to have access to evidence-based health services… comparable to that of the general community • P  risoners with an infectious disease should be managed by health services to minimise the possibility of contamination of the prison environment • M  edical information should be confidential to maintain privacy, although it can be provided on a ‘need to know’ basis with the consent of the prisoner; when it is in the interest of the prisoner, or where ‘confidentiality may jeopardise the safety of others or the good order and security of the prison.’ In relation to drugs, the Guidelines support correctional services to develop strategies ‘to prevent the supply of drugs into prison, reduce the demand for drugs and minimise the harm arising from drug use in prisons through education, treatment and enforcement.’ The Guidelines identify the need for a workforce which is ‘trained and assessed regarding their understanding of any legislative powers and authority they may exercise.’ National, state and territory health authorities recognise the relationship between imprisonment and exposure to hepatitis C with inmates or correctional settings recognised as a priority population, setting or challenge in several jurisdictional hepatitis C strategic responses. Australia’s first National Hepatitis C Strategy 1999/2000 to 2003-2004 highlighted an independent association between hepatitis C and incarceration.

Each of the National Hepatitis C Strategies acknowledges people in correctional settings as one of several intersecting priority populations. The National Hepatitis C Strategy 2010 – 2013 describes a ‘disproportionately higher’ hepatitis C prevalence given the number of people imprisoned for drug related offences, the high prevalence of hepatitis C within these settings and the ‘use of un-sterile injecting equipment, and sharing of tattooing and piercing equipment and other blood-to-blood contact.’ The intersecting nature of the populations most affected by hepatitis C transmission is highlighted with a higher proportion of Aboriginal and Torres Strait Islanders with hepatitis C; higher rates of hepatitis C among people who inject drugs from these communities, and the over-representation of Aboriginal and Torres Strait Islanders in correctional settings. Preventing further transmission of hepatitis C is identified as a key challenge for the strategy, which acknowledges that there are structural barriers to implementing hepatitis C prevention interventions in correctional settings. The strategy notes that while providing needles and syringes in correctional settings is seen by some as ‘controversial,’ there is no evidence of adverse outcomes associated with these programs. The strategy supports identifying ‘opportunities’ for a trial of a prison based needle and syringe program along with increasing access to disinfectants, education and counselling, access to drug treatment programs, and promoting Australian infection control standards in correctional settings. The Australian Ministerial Advisory Committee on AIDS, Sexual Health and Hepatitis, Hepatitis C Subcommittee produced guidelines related to hepatitis C prevention, treatment and care in correctional settings in Australia.26 The guidelines, endorsed by the Corrective Services Administrators Council in April 2009, provide direction based on best practice for correctional services, and state ‘unless intensive efforts are directed towards preventing the spread of hepatitis C in custodial settings, transmission of hepatitis C will continue and the epidemic will grow.’ The guidelines acknowledge that while the Australian Government has no responsibility for prison administration, people in correctional settings are identified as a priority population at risk of hepatitis C infection in the National Hepatitis C Strategy 2005–2008.27 In relation to hepatitis C prevention in correctional settings, the guidelines recommend: • Providing education to inmates about hepatitis C prevention and management, including treatment • Infection control. Each institution needs appropriate infection control procedures with staff education and training about infection control integral to the proper application of procedures. Compliance with Australian infection control standards for barbering, tattooing, piercing and body art reduces the risk of transmission of hepatitis C in custodial settings • C  ompliance with the Guidelines on HIV/Hepatitis and Other Blood Borne Viruses in Sport28 reduces the risk of exposure to blood during sport and recreational activities within custodial settings • P  rovision of, and access to, bleach and disinfectants in custodial settings. Education on the proper use of bleach is essential • F  ree razors and toothbrushes that can be readily replaced, and removing any razors and toothbrushes left in ablution areas • E  asily accessible education and counselling about hepatitis C and injection drug use is fundamental to supporting behaviour change • A  ccess to drug treatment programs including detoxification, drug free rehabilitation and drug substitution programs will reduce hepatitis C transmission in custodial settings.

35

36

The guidelines note providing ‘sterile injecting equipment in prisons is a controversial and complex issue. Any needle and syringe exchange trial which is being considered by Australian states and territories would need to be supported by custodial staff, and fully evaluated to assess occupational health and safety, impact on hepatitis C transmission and any other indirect effects.’ The National Corrections Drug Strategy 2006 – 2009 provides a ‘framework for a coordinated, integrated approach to addressing drug-related issues in Australian adult correctional and juvenile justice facilities and related services.’29 The strategy is endorsed by the Ministerial Council on Drug Strategy, Corrective Service Ministers’ Conference, Corrective Services Administrators’ Conference, Community and Disability Services Ministers’ Advisory Council, Australasian Juvenile Justice Administrators, the Australian National Council on Drugs and the Intergovernmental Committee on Drugs and encompasses • S  upply reduction strategies – to disrupt and reduce the production and supply of illicit drugs, and to control and regulate the supply of licit substances • D  emand reduction strategies – to prevent and reduce drug misuse, including abstinence-oriented strategies and treatment to reduce drug misuse • H  arm reduction strategies – to reduce drug-related harm to individuals, staff of facilities, and the wider community. The strategy notes the increasing level of ‘entrenched’ drug use among prison entrants and a hepatitis C prevalence in prisons estimated to be up to 17 times greater than in the general community. The objectives of the National Corrections Drug Strategy 2006–2009 includes to: • Prevent and reduce the supply of drugs in correctional facilities • R  educe risk behaviours associated with drug misuse by offenders within correctional and community-based facilities and services • R  educe drug-related harm for the families and wider communities of people under the care and supervision of correctional and community-based facilities and services. One of the six key principles is to ensure a balance between demand, supply and harm reduction measures ‘depending on what the evidence suggests.’ Monitoring of the strategy is yet to be developed or described. The following information summarises regulations, frameworks and reviews of correctional services affecting hepatitis C prevention within jurisdictional boundaries. The report notes that responses to prevention initiatives in relation to blood borne viruses are ‘underpinned by a supportive environment.’ This has meant that issues that relate to the operation of correctional settings, including the delivery of health services and interventions affecting hepatitis C risk behaviours, are acknowledged and reported. The audit of legislation affecting the transmission of hepatitis C within correctional settings was undertaken in 2006, and updated in 2008 and fully reviewed for completeness and timeliness in January 2010. Each jurisdictional summary includes a snapshot of the correctional system within that jurisdiction. Information for this snapshot comes from the Australian Bureau of Statistics, the Australian Institute of Criminology, the Productivity Commission Report on Government Services 2010, and the National Prison Entrants’ Bloodborne Virus and Risk Behaviour Report 2004 and 2007 except where otherwise noted.

Australian Capital Territory (ACT) Corrective Services ACT Corrective Services Key Points

37

• The Australian Capital Territory commenced operating its first full time adult correctional centre in 2009 and its legislation is the most recently developed • The Australian Capital Territory is one of two Australian jurisdictions with a Human Rights Act • The Australian Capital Territory is one of two jurisdictions recording a decrease in imprisonment rates between 1999 to 2009 • Health services in correctional settings are provided by ACT Health • Policy affecting hepatitis C prevention initiatives is generated by both ACT Health and Corrective Services No of Prisons (Public)

1

No of Prisons (Private) Prison Population @ June 09 % Prison Population who are Indigenous Hepatitis C Prevalence Prison capacity

0 203 12.8% 33% (based on very low numbers) 300

The vision of ACT Corrective Services is to ‘contribute to a safe, strong and cohesive community through the delivery of custodial and community corrections services and programs that are recognised for their level of excellence.’ Corrective Services is a division of the Department of Justice and Community Safety with health services provided by Corrections Health, one of the Community Health Services within ACT Health. Custodial Operations within ACT Corrective Services include the Alexander Maconochie Centre (AMC); the Symonston Correctional Centre, and the Court Transport Unit. The Alexander Maconochie Centre was opened on the 11 September 2008 and began accepting prisoners in March 2009. Until the opening of the Alexander Maconochie Centre, Australian Capital Territory inmates were held in New South Wales prisons – primarily Goulburn Correctional Centre. The Department of Justice and Community Safety report an average prison population in 2006-07 of 106 per month in 2006-07, a 14.4% decrease in average prisoner numbers from the previous year. The Australian Capital Territory has the lowest imprisonment rate; the second lowest Indigenous imprisonment rates, and had the highest proportional increase of Indigenous imprisonment rate, albeit occurring from a low base.30 One Australian Capital Territory remand centre participated in the National Prisons Entrants Bloodborne Virus and Risk Behaviour Survey (2008) with numbers too small to report separately.31

Legislation The legislative instruments providing the framework for providing custodial services in the Australian Capital Territory are: • Corrections Management Act 2007 • Crimes (Sentencing) Act 2005 • Crimes (Sentence Administration) Act 2005 • ACT Human Rights Act 2004

38

Corrections Management Act 2007 This legislation relates ‘to correctional services, and for other purposes.’ The preamble to the Act, in part, notes the • Inherent dignity of all human beings… is one of the fundamental values of a just and democratic society. • C  riminal justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 and international law. Section 14 permits the development of policies and operating procedures which are ‘notifiable instruments’ and be ‘available for inspection.’ A significant inclusion in relation to hepatitis C prevention is section 21 of the Act where a doctor, who provides ‘health services to detainees, and protects the health of detainees (including preventing the spread of disease at correctional centres),’ must be appointed by the ‘executive responsible for the Public Health Act 1997’ at each correctional centre. Subsection 4 notes that ‘the doctor may give written directions to the chief executive’ in relation to ‘protective health interventions’ while subsection 5 allows the chief executive to refuse written direction from the doctor on the grounds of security and good order. Several other sections of the Corrections Management Act 2007 relate to health: • Section 12 describes minimum living conditions including access to health services • H  ealth care equivalent to that available to other people in the Australian Capital Territory is required under section 53, including in subsection (c) that conditions in detention promote the health and wellbeing of detainees; and (d) ‘as far as practicable, detainees are not exposed to risks of infection.’ Additional provisions in this section relate to more clinically based interventions • A  ssessing ‘health needs and risks’ is provided for under sections 67 and 68 including a medical assessment • Section 77 allows prisoner health records to be provided to the chief executive • ‘Prohibited things’ are legislated against in section 81 • S  ection 92 allows for the Chief Executive to segregate prisoners for reasons including disease prevention • P  art 9.6 of the legislation provides for the drug testing of prisoners and people working, volunteering or visiting prisons • S  ection 152 describes ‘taking (in any way) alcohol or a drug into the detainee’s body’ as a disciplinary breach. The Crimes (Sentencing) Act 2005 consolidates ‘and reform(s) the law about sentencing offenders, and for other purposes,’ with directions for sentencing, as does the Crimes (Sentence Administration) Act 2005.

ACT Human Rights Act 2004 The preamble to the ACT Human Rights Act 2004 states: 1. Human rights are necessary for individuals to live lives of dignity and value. 2. R  especting, protecting and promoting the rights of individuals improves the welfare of the whole community. 3. Human rights are set out in this Act so that individuals know what their rights are. 4. S  etting out these human rights also makes it easier for them to be taken into consideration in the development and interpretation of legislation. 5. T  his Act encourages individuals to see themselves, and each other, as the holders of rights, and as responsible for upholding the human rights of others. 6. F  ew rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual’s rights may also need to be weighed against another individual’s rights. 7. A  lthough human rights belong to all individuals, they have special significance for Indigenous people –the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance. In a presentation to the Crime and Justice Network at the University of New South Wales, John Paget, the Director of the then ACT Prison Project Office presented on the relationship of the design and conceptualisation of the Alexander Maconochie Centre and the ACT Human Rights Act 2004.32 Key sections within the legislation affecting the development of the prison from his perspective included: • Section 8 – recognition as a person, and as equal before the law • S  ection 9 – everyone having the right to life, which in the presentation is noted as including condoms, needle exchanges and recommendations from the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) • Section 10 – protection from torture • Section 11 – protection of the family and children • Section 12 – privacy • Section 14 – freedom of thought • Section 16 – freedom of expression • Section 17 – freedom to take part in public life • Section 18 – right to liberty and security of person • Section 19 – humane treatment when deprived of liberty • Section 27 – rights of minorities.

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Internal Regulation 40

Under the Corrections Management Act 2007, internal policies are notifiable instruments and listed on the Australian Capital Territory legislation website.33 Some of the policies listed on the site refer specifically to their jurisdiction within the Belconnen Remand Centre (BRC) and Symonston Temporary Remand Centre (STRC) rather than the Alexander Maconochie Centre. Some policies are not publicly available due to security issues. Several health policies affecting hepatitis C prevention have been developed by Corrective Services.

Corrections Management (Medical Treatment) Policy 2007 The stated purpose of the policy is to ‘ensure that prisoners have access to essential medical, dental and mental health services in keeping with generally accepted community practices.’ The policy describes the rights of prisoners to access health services, and notes an ‘emphasis… placed on health promotion/illness prevention.’ Corrections Management (Infectious Diseases) Policy 2007 This policy directs ‘the management of prisoners who are known to have a communicable disease’; adopts ‘the position that all people are a possible source of infection,’ and supports implementing infection control measures. Section 6.1 of the policy supports the privacy of prisoners in terms of disclosure, while section 2.1 advises health professionals having ‘a duty of care’ to inform other staff of the centre of ‘any medical condition that may place other prisoners or staff at risk.’ The policy advises that kitchen workers ‘need to be screened for blood borne communicable diseases.’ Information will be provided to prisoners to ensure ‘they are made aware of their responsibilities to prevent transmission of the disease’ through providing harm reduction information. Corrections Management (Infectious Diseases) Procedure 2007 This procedure directs the management of prisoners who are known to have a communicable disease. The first procedure advises the Deputy Superintendant to complete an Incident Reporting Policy and inform the Executive Director upon being notified of a prisoner who is infected with a ‘contagious disease.’ The rest of the procedure provides infection control and management of exposure for Corrections Officers. Corrections Management (Contraband) Policy 2007 The contraband policy describes items ‘prohibited if there are reasonable grounds for believing they are illegal, potentially dangerous or prejudicial to the health of any person or to the security or good order.’ The policy prohibits drugs, and implements used for the administration of drugs including ‘hypodermic equipment.’ Corrections Management (Human Rights) Policy 2007 The purpose of this policy is ‘to ensure observance of the human rights of persons accommodated and working in a correctional centre, consistent with the Human Rights Act 2004.’ The policy notes the human rights of staff, prisoners and visitors must be protected and that Corrective Services staff are ‘uniquely placed to enhance’ the human rights of others. Several specific human rights are noted as being protected including humane treatment when deprived of liberty. The policy identifies restrictions to human rights in the ‘interests of good order and security.’

Reviews The ACT Human Rights Commission reported on a human rights audit of ACT correctional centres (2007).34 The report summarises the treatment of detainees in the then current remand centres in the ACT, and identifies issues to be addressed in the development of Alexander Maconochie Centre. The executive summary of the report notes: • P  risons as ‘substitute accommodation’ for people with mental health issues, with an urgent need for a specific facility • T  he current Periodic Detention Centre is overcrowded, with people needing to be accommodated in other ‘substandard’ remand centres • T  he Human Rights Act requires prisoners to be treated humanely, and that due to staff shortages, detainees were unable to spend a recommended nine hours per day out of cells • ‘A history of downplaying the needs and human dignity of remandees on the basis of operational and resource constraints’ • H  ealth services ‘must’ be equivalent to those available in the broader community. The report notes illicit drugs are found in custodial settings throughout the world, with injectable drugs, injecting and tattooing equipment found in ACT remand centres. Needle and syringe programs have been established, operate in prisons in several countries, and have minimised harm associated with injecting. To deny access to the program for prisoners ‘may be viewed as inhumane.’ • S  upport for developing ‘dynamic security’ which is described as security based on ‘good professional relationships between staff and detainees rather than physical barriers.’ Continual officer training and leadership will assist in developing this culture. • S  upport for the Western Australian Office of the Inspector of Custodial Services as best practice for the independent oversight of correctional services • S  upport for developing more community based mental health interventions rather than relying on security based responses. The review made a substantial number of recommendations. Specifically in relation to hepatitis C prevention and health issues, recommendations included: • A  pilot ‘needle and syringe exchange’ for the Alexander Maconochie Centre with consideration given to a safe injecting room • P  rovision of regular information to prisoners about preventing the transmission of blood borne and sexually transmissible infections • Installation of a condom, latex gloves and dental dam dispensing machine • T  he Australian Capital Territory government to seek a commitment from the Australian Government to enable access of prisoners to Medicare ‘on the basis that the human rights principle of equivalence requires that detainees be treated equally to the community.’ The Winnunga Nimmityjah Aboriginal Health Service produced a best practice model for addressing Aboriginal health issues for people in custody based on a human rights framework.35 The report noted an ‘overwhelming concern’ of prisoners being infected with hepatitis C, and bringing the infection into the community on release given the lack of a prison needle and syringe program. The report recommended voluntary testing for hepatitis B, hepatitis C and HIV on entry and release from prison, with informed consent and appropriate counselling; immunisation for hepatitis B, and the introduction of a needle and syringe program within prison as part of a larger harm reduction strategy.

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42

Directions ACT, is a community based agency providing a range of alcohol and drug related services, including coordination of the needle and syringe program in the Australian Capital Territory. The agency commissioned two reports detailing issues in developing and implementing alcohol and drug interventions within the Alexander Maconochie Centre, and the role of the non-government sector in the delivery of these programs. The two reports are: • S  trategies for Addressing Alcohol and Other Drugs in Correctional Settings – A background paper commissioned by Directions ACT.36 • T  he Proposed Needle Syringe Program at the Alexander Maconochie Centre, Canberra’s New Prison – An information paper on the evidence underlying the proposal.37 The report addressing alcohol and drug strategies within correctional settings identifies: • T  he challenge for correctional administrators in implementing ‘harm minimisation policies within what are too often harm maximising settings’ • T  he strategic context for implementing alcohol and drug interventions include the National Drug Strategy; the ACT Government’s drug strategy; the ACT Human Rights Act; national and international corrections guidelines and policy briefs, and consensus statement from the World Health Organisation • T  he development of the National Corrections Drug Strategy being criticised for a lack of consultation or collaboration with key stakeholders outside correctional agencies or the Australian National Council on Drugs • T  hat while there is a large amount of literature on drugs in prisons, and the concept of ‘healthy prisons,’ little research is available on the effectiveness of prison drug programs • C  omments from a previous Executive Director of ACT Corrective Services who stated the only way to keep illegal drugs out of prison would be to institute a security regime so harsh it would be unacceptable in human rights terms • A  corrections drug policy has to meet the needs of several stakeholders including inmates and their families, corrections staff and the broader community • T  he principle of the equivalence of prison services which are at least as comprehensive and high quality as those found in the community is widely accepted in official statements but rarely implemented • N  on-government organisations that provide services within ACT correctional settings risk ‘potentially negative outcomes for the NGOs… from… being incorporated into (a) coercive correctional system’ • If non-government organisations work within the correctional system, terms such as ‘throughcare model of case management’ and ‘healthy prison’ need clarification, with clear governance arrangements. The information paper on a proposed needle and syringe program at Canberra’s new prison identified: • E  pidemiological evidence on sharing of contaminated injecting equipment in prisons and the extent of hepatitis C within the prison population • F  ailure to provide prisoners with health care at least as good as that found in the community, including access to sterile injecting equipment, and that this contravenes obligations under international law and is inconsistent with Standard Guidelines for Corrections in Australia. • C  urrent harm reduction interventions in Australian correctional settings are ‘not sufficient to achieve important public health goals’

• T  he operation of needle and syringe programs in prisons is well documented. Agencies including the World Health Organisation and the Australian National Council on Drugs conclude the evidence base is strong enough for prison needle and syringe programs to be provided far more widely • E  stablishing the Alexander Maconochie Centre and a world’s best practice correctional health service provides an ‘ideal opportunity’ to trial a prison based needle and syringe program.

Strategies Adult Corrections Health Services Plan 2008 – 2012 This plan, developed by the ACT Adult Corrections Health Program within ACT Health, has a stated purpose of providing the framework for managing prisoner health. The plan uses ‘underpinning principles,’ including • Health services working within a Human Rights context • Acknowledgement of the role of inequality in the social determinants of health • T  he World Health Organisation definition of health as a state of physical, mental and social wellbeing, not just the absence of disease or infirmity • A  n understanding that ACT Health and the Department of Justice and Community Safety will work in partnership to develop strategies to enhance prisoner health • A  cknowledgement that people in custodial settings have the right to health services, prevention, education and health promotion equal to the broader population • R  elease of prisoner’s health information will only occur with their consent unless they are at imminent risk of harming themselves or others, or if provided for by law. The plan summarises the health status of prisoners using the 2001 New South Wales Inmate Health Survey, and includes information detailing staffing and infrastructure; issues for specific populations including Aboriginal and Torres Strait Islander people, women and people from culturally and linguistically diverse backgrounds; information management – including the need to develop protocols between health and correctional services, and evaluation strategies. The section describing the service model for the Alexander Maconochie Centre notes health service provision including • Physical and mental health assessment of prisoners upon entry • Primary care through general health clinics • Triage • Pharmaceutical services including a drug replacement program • Initial health promotion and awareness raising about health services • Coordination of care • Provision of gender specific health services

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The plan uses harm minimisation in addressing the alcohol and/or illicit drug problems of prisoners, with treatment interventions consistent with the ACT Alcohol, Tobacco and Other Drug Strategy 2004-2008. In relation to alcohol and drug interventions, the plan • R  ecognises prisoners use drugs regardless of supply reduction interventions. The high prevalence of hepatitis C and drug use requires that prisoners have access to information, including through peer education, to reduce harm. • W  ill provide drug and alcohol counselling, access to a detoxification program, and treatment with a range of opiate replacement therapies. The plan states that Australian Capital Territory Health staff will not undertake drug testing of inmates. The plan notes public health initiatives to reduce the transmission of blood borne viruses including complying with the Public Health Act 1997; disease surveillance; outbreak investigation, and monitoring of infection. Policy will be developed on immunisation; hepatitis C treatment; skin penetration; conjugal visits, needles and other injecting equipment. Condoms, dental dams and water based lubricant and information about their use will be available and accessible to all prisoners in the Alexander Maconochie Centre. Bleach ‘should’ be readily available. The plan notes the success of needle and syringe programs in reducing blood borne viral transmission within correctional settings, particularly with the incidence of needle sharing within a population with a high prevalence of hepatitis C. The plan recommends evaluating proposed drug interventions after 18 months to determine their effectiveness. If, after this evaluation, there are gaps, ACT Health will investigate introducing a needle and syringe program to the Alexander Maconochie Centre.

ACT Corrective Services, Alcohol and Other Drug Programs The ACT Corrective Services website identifies three drug programs being offered to prisoners in the Alexander Maconochie Centre: 1. F  irst Steps… To Recovery – consisting of 6 discreet modules delivered within a closed group format over six weeks 2. T  herapeutic Community – a treatment approach where ‘the community itself, through self-help and mutual support, becomes the principal means for promoting healing and personal changes.’ Prisoners will enter the program during the last six months of their custodial sentence. 3. G  etting Me Back – a rolling and open group format addressing ‘salient’ alcohol and other drug issues raised by the participants.

ACT Health – HIV/AIDS, Hepatitis C, Sexually Transmissible Infections. A Strategic Framework for the ACT 2007–2012 Goal 1 of the strategy, providing the framework for the government response to the transmission of hepatitis C, is to ‘reduce the transmission in the ACT of the Human Immunodeficiency Virus (HIV), the hepatitis C virus (HCV) and sexually transmissible infections (STIs).’ The document refers to guiding principles identified within national strategies, with two additional principles being developing a population health and a human rights approach. The strategy operates within a ‘settings’ context which it describes as looking ‘at the changes in organisations, systems and the environment needed to enable people to access services, or reduce risk behaviours, rather than at individual behaviours.’ Correctional facilities are noted as one of these settings.

People in custodial settings are one of the priority populations with ‘appropriate prevention education within the prison setting’ noted as one challenge for the strategy. One strategic outcome is to identify ‘actions to reduce HIV, Hepatitis C and STI transmission… in the Adult Corrections Health Services Plan 2007–2010.’ Other actions specifically relating to hepatitis C prevention in prisons include: • Advocating for change to legislation that contributes to drug related harm • Ensuring that Alexander Maconochie Centre staff are appropriately trained and resourced • Continuing to support and provide targeted hepatitis C testing activities for priority population groups • P  roviding best practice standards of medical care for people with hepatitis C in the Alexander Maconochie Centre.

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Corrective Services New South Wales (NSW) 46

• 38% of all Australian inmates are imprisoned in New South Wales, where there was a 7% increase in prisoner numbers between 2008 and 2009 • One-quarter of the prison population in New South Wales was born overseas • Health services within correctional settings is provided by Justice Health, a Statutory Health Corporation within NSW Health • The Corrective Services NSW Operations Procedures Manual is not publicly available. The New South Wales Council for Civil Liberties obtained the document after submitting a Freedom of Information request No of Prisons (Public)

33

No of Prisons (Private)

1

Prison Population @ June 09

11,127

% Prison Population who are Indigenous

21.3%

Hepatitis C Prevalence Prison capacity

42% 9,505

The mission of Corrective Services NSW is to manage ‘offenders in a safe, secure and humane manner and reduce risks of re-offending.’ The department provides a service guarantee that includes: • C  orrectional services meeting legislated standards, court requirements and reasonable community expectations • Security, safety and care needs of inmates in correctional centres are ‘adequately’ met • P  risoners are provided with opportunities ‘to acquire skills and address deficits in order to enable them to lead constructive law-abiding lives.’ Health services within prisons are the responsibility of Justice Health, described as a ‘state-wide or specialist health service’ of the Department of Health. The vision of Justice Health is of ‘international best practice health care for those in contact with the criminal justice system.’ Justice Health is administered under the Health Services Act 1987 through the Department of Health. The cost of medical services provided to offenders for the year ending 30 June 2009 was $95.65m.38 The average daily number of prisoners in full time custody in New South Wales during 2008/09 was 10,068.39 The daily average number of Indigenous prisoners in full time custody at June 2009 was 2,372 (or approximately 21.3% of the total population) with 854 female prisoners (7.6%) in full time custody during the same period.40 New South Wales has the third highest daily imprisonment rate (behind Western Australia and Northern Territory), and the second highest imprisonment rate of Indigenous people in Australia.41 The National Prisons Entrants Bloodborne Virus and Risk Behaviour Survey (2008)42 found 42% of prisoners participating in the survey in New South Wales were infected with hepatitis C, a slight decrease on a 2004 survey (43%), and on a 2001 survey (44%).43 All three surveys show a similar and greater proportion of incarcerated women infected with hepatitis C compared with men, ranging from 64% (40% in men) in 2001 and 62% (37% in men) in 2007.

Justice Health has undertaken three surveys of the health of prisoners since 1996. In relation to hepatitis C transmission risks in correctional settings the most recent report notes a slight decrease in the proportion of inmates reporting injecting while in prison, from 25% in 1996 to 17% in 2009. Only three of 112 prisoners reporting injecting in the 2009 survey used a new needle. Less than half of the prisoners reported being aware of the Corrective Services NSW policy on access to bleach and there was a substantial decrease in prisoners ever attempting to access bleach between 2001 (31%) and 2009 (17%).44 At the same time for people who reported accessing bleach, almost two-thirds described this access as ‘easy’ or ‘very easy.’ Addressing Prisoner Drug Use: prevalence, nature and context (2005) is the third report commissioned by the (then) Department of Corrective Services to identify data on drug related behaviour of prisoners prior to and during incarceration. Some findings of relevance to hepatitis C prevention include: • C  annabis is, ‘by a large margin,’ the most commonly used drug in prison with more than half the inmates reporting cannabis use • Drug injecting rates both in the community and within prison decreased between 2001 and 2003 • 5.7% of male inmates reported their first injecting experience occurred while in prison • C  onfidence in seeking support from alcohol and drug workers within prisons was affected by the role of these workers in security classification.45 The report recommended a drug strategy for prisons which includes ‘harm, demand and supply reduction principles which reflect key elements of the National Drug Strategy’ and strengthening ‘harm reduction measures… including the routine implementation of a health promotion workshop for all inmates on reception.’ The potential for blood borne viral transmission occurring in prisons was the subject of an ABC Radio report in 200046 who reported that an inmate with HIV, hepatitis C and hepatitis B in the Metropolitan Remand and Reception Centre shared injecting equipment initially with two other prisoners and then three others the next day. After the inmate disclosed that he was infected, the Department of Corrections HIV/Health Promotion Unit sought information from all prisoners within the prison who had shared injecting equipment in the previous week. The media reported that 145 prisoners disclosed that they had shared injecting equipment during that time, with one of the prisoners subsequently injecting after being moved to another prison.

47

Legislation 48

Corrective Services New South Wales lists legislation affecting the delivery of correctional services within New South Wales as: • Crimes (Administration of Sentences) Act 1999 • Crimes (Administration of Sentences) Regulation 2008 • Crimes (Sentencing Procedure) Act 1999 • Crimes (Interstate Transfer of Community Based Sentences) Act 2004 • Protected Disclosures Act 1994 No 92 • Summary Offences Act 1988 No 25 • Crimes Act 1900 No 40 • Prisoners (Interstate Transfer) Act 1982 No 104 • Parole Orders (Transfer) Act 1983 No 190 • International Transfer of Prisoners Act (New South Wales) 1997 No 144 • Prisoners (Interstate Transfer) Act 1982 No 104

Crimes (Administration of Sentences) Act 1999 Two objectives of the major legislation providing the framework for correctional services in New South Wales are that prisoners are ‘placed in a safe, secure and humane environment,’ with ‘the safety of persons having the custody or supervision of offenders is not endangered.’ Section 51 describes a ‘correctional centre offence’ as an ‘act or omission by an inmate (whether or not it is also a criminal offence)… that is declared by the regulations to be a correctional centre offence.’ Section 72A provides for ‘attendance, treatment and medicine’ for the ‘preservation of the health of the inmate, of other inmates and of any other person’ in the opinion of a medical officer. Section 236A details the functions of Justice Health as: • Providing and monitoring health service to offenders • Preventing the transmission of infectious disease ‘in, or in relation to, correctional centres’ • Holding medical records • P  roviding advice to the Commission on ‘diet, exercise, clothing, capacity to work and general hygiene of inmates.’ The Chief Executive of Justice Health is provided with ‘free and unfettered’ access to all parts of the correction centre and to all offenders in custody. Under section 236C, medical officers are subject to the direction and control of the Chief Executive Officer of Justice Health. The Health Services Act 1997 describes the role and functions of Justice Health as a Statutory Health Corporation which is constituted to provide health services in environments other than a geographical area (Section 11).

Crimes (Administration of Sentences) Regulation 2008 Section 32 of the regulations provides for the separation of prisoners with an ‘infectious or verminous condition’ from other prisoners. Section 136 makes tattooing illegal.

In relation to prisoner drug use, section 139 makes drug possession illegal while section 140 makes it illegal for a prisoner to administer a drug to herself or himself or another person or consent to being administered with a drug. It is illegal for a prisoner to possess any needle, syringe, smoking accessory or other implement intended for use in the administration of a drug under section 141. Under section 299, Justice Health must inform a prescribed Department of Corrective Services officer if a prisoner has a ‘serious infectious disease’ described under Schedule 3 of the Public Health Act 1991 which is relevant to ‘acute viral hepatitis.’ Justice Health notes that a list of prisoners with HIV is provided to Corrective Services NSW although there is no disclosure made of prisoners with viral hepatitis.iv

Summary Offences Act 1988 Section 27C of the Summary Offences Act 1988 makes it illegal for a person to ‘introduce a syringe into a place of detention,’ unless ‘the officer in charge of the place of detention’ has consented. A syringe is defined as ‘anything designed for use or intended to be used as part of such a syringe, and a needle designed for use or intended to be used in connection with such a syringe.’

Internal Regulation – Operations Procedures Manual The Corrective Services NSW Operations Procedures Manual provides the framework for service delivery throughout New South Wales and is only available through a Freedom of Information request. The New South Wales Council for Civil Liberties provides access to available sections of the manual as at June 2007. In relation to the hepatitis C prevention the following policies are relevant: • Inmate services and programs overview • Urinalysis In Correctional Centres • Drug Related Issues • Duty of Care • Condoms – Dental Dams • HIV-AIDS-Hepatitis • Methadone and Buprenorphine Programs • Infectious-Contagious Diseases.

Inmate services and programs overview The manual describes the role of the Inmate Services and Programs Unit (ISP) as providing ‘specific services and assistance to inmates to help them adjust to correctional centre life and to enable them a successful transition to the community.’ The primary aim of the Alcohol and Other Drugs/HIV and Health Promotions Unit (AOD) is to minimise the ‘harm associated with drug and alcohol use among inmates under the care and control of the NSW Department of Corrective Services,’ with services ‘based on the assessed needs of each centre and consistent with harm minimisation policies that were introduced by the government in 1985.’

iv Personal communication, Justice Health (NSW), 13 October 2010

49

Urinalysis in Correctional Centres The stated purpose of this policy is to: 50

• Establish a strategy to reduce the incidence of drug abuse in correctional centres • Control the spread of AIDS by reducing the use of injectable drugs • Provide a remedial program for drug addicted inmates • A  ssist in the management of correctional centres, through reducing the negative effects of drug dealing and drug-induced behaviour by inmates. The policy directs correctional centres with respect to the rationale for urinalysis. This includes sampling, procedures and operational orders providing instruction for taking samples. Given the latency of cannabis in the blood system, the policy provides an exemption for people who have been in custody for less than 42 days, and who receive a positive result for cannabis. After this time, the same penalties exist for all drugs.

Drug Related Issues This policy guides responses to inmates possessing illegal/prohibited substances or possession of implements intended for drug administration. The policy states that ‘it is an offence for inmates to have a prohibited drug/drug implement or unprescribed drug in his/her possession or to have recently consumed or be under the influence of alcohol or any other intoxicating substance.’ The policy describes the processes that need to be undertaken by prison officers in response to discovering drugs. Duty of Care The Duty of Care policy notes ‘the department is vicariously liable for the negligent acts of its employees when those acts amount to negligent performance of their duties.’ Duty of care is defined as ‘the obligation owed to anyone whom it is reasonably foreseeable would be injured by the lack of care of that person.’ The policy states that ‘negligence,’ either as an act or omission, occurs when ‘a person owing a duty of care, fails to exhibit the requisite standard of care towards the person to whom a duty of care is owed, and that person sustains injury, loss or damage as a result. It is also essential that the injury, loss or damage is reasonably foreseeable.’ Condoms and Dental Dams This policy recognises regulations providing for the ‘availability and disposal, unauthorised possession, use and disposal of condoms in correctional centres.’ The policy notes that all prisoners are entitled to use condom/dental dam vending machines and disposal units.

HIV-AIDS-Hepatitis The focus of this policy is managing prisoners with HIV, although hepatitis is included sporadically within the policy. The policy objectives are: • HIV screening can only occur with consent and at the request of a medical officer or prisoner • Corrections Health Service nurse will test prisoners with results kept on their medical file • S  taff members are advised of a $2200 penalty for ‘recording of an inmate’s HIV/AIDS status on any department form’ • P  risoners with HIV/AIDS or hepatitis are to be integrated as much as possible within the mainstream correctional population • P  risoners exhibiting ‘unacceptable behaviour’ will be segregated (‘special management environment’). In a section of the policy titled ‘guidelines,’ the policy indentifies: • M  onthly reporting of prisoners who have tested positive to HIV or AIDS, and that the Corrections Health Services will notify the Department, who then notify governors if the prisoners are in their prison • A  series of ‘positions of responsibility’ to whom HIV ‘can’ be disclosed is provided, although these people are only to disclose this status ‘for the purpose of exercising the function of that office’ • The department may disclose viral status for the welfare of the prisoner • Inmates with HIV can be housed with other prisoners with HIV, or with another prisoner only after disclosing their viral status to the prisoner they will share with, who is to complete an ‘Association of HIV Positive Inmates’ form. They must make an undertaking to not engage in risky behaviour after being provided with ‘sterilising substances.’ The policy provides guidance on infection control, including responding to knowing transmission of HIV or hepatitis, and procedures to be adopted in the event of exposure to HIV/AIDS or hepatitis.

Methadone and Buprenorphine Programs The goal of treatment in the program is reducing the health, social and economic harm associated with drug use to the individual and the community by: • Reducing harmful drug use • Improving health and well-being • Reducing transmission of blood-borne communicable viruses • Reducing deaths associated with drug use • Reducing crime • Facilitating social functioning • Improving the economic status of clients and their families. The policy provides guidelines for accessing the programs. Corrective Services NSW notes that New South Wales was the first jurisdiction in the world to introduce a prison methadone program; with an evaluation showing it had been successful in reducing the risk of hepatitis C infection, mortality and re-offending.v v Personal communication, Corrective Services NSW. 24 September 2010

51

52

Infectious/contagious Diseases This policy delineates ‘the transfer of information from health to custodial and other authorised staff.’ Procedures described in the policy include disinfecting cells; hygiene standards; distribution and collection of razors and blood spill management. Department of Corrective Services, HIV and Health Promotion, Offender Programs Unit A ‘program summary’ dated November 2005 describes the activity of the unit, and states that its objectives are minimising potential transmission of communicable diseases such as HIV and hepatitis. Interventions provided by the unit include: • HIV and health information workshops available in all correctional centres • Peer support programs • HIV, Hepatitis and Related Diseases (HHARD) Health Care Issues Workshop • Brief interventions. The unit provides a crisis management service to ensure access to bleach, and heroin overdose prevention education.

Aboriginal and Torres Strait Islander Inmate Handbook This resource, produced by the (then) Department of Corrective Services, describes inmate services and programs. The handbook gives a comprehensive overview of the prison system and the services available, including services provided by Justice Health. One section of the handbook provides information for people with hepatitis C about accessing services. The only prevention information for people who are not infected with hepatitis C relates to a ‘One Day Health Information Workshop’ facilitated by the HIV and Health Promotion Unit.

Reviews The New South Wales Parliament Legislative Council Standing Committee on Social Issues examined the social and economic impact of hepatitis C in 1998.47 The committee made several recommendations relating to hepatitis C prevention and treatment within correctional settings in New South Wales, and reported it is ‘imperative that the Government recognise that the prison population faces an unacceptably high risk of contracting hepatitis C and, on release, these people pose a serious danger of transmitting the virus to the wider community.’ The report proposed developing further infrastructure and resourcing a more comprehensive response to hepatitis C within Corrections with recommendations including: • E  nsuring the HIV and Health Promotion Unit is adequately resourced, with interventions reflecting current health promotion practices • Addressing shortcomings to the methadone program • Bleach to be available and not linked to drug surveillance interventions • Non-custodial sentencing options as a hepatitis C prevention intervention • To investigate introducing a prison needle and syringe program • Training corrections staff about harm minimisation.

In 2001 the NSW Anti-Discrimination Board (ADB) undertook an inquiry into hepatitis C related discrimination with the report, C-Change released in November 2001.48 The report recognised particular challenges to delivering prevention and care services and programs in custodial settings. Key points in the report relating to prevention of hepatitis C transmission were that inmates should have access to health care services and programs of a standard equivalent to that available in the community, with ‘a pressing need to address the unacceptably high risk of infection with hepatitis C within the correctional system.’ The report recommended: • T  he NSW Ministerial Advisory Committee on Hepatitis to report on the appropriateness of introducing a needle and syringe exchange program into the State’s correctional system and, if necessary, develop guidelines for the program’s implementation • T  he Minister for Corrective Services ensure that adequate bleach dispensing machines are available in all correctional centres enabling inmates to access bleach freely and anonymously. Bleach programs should be administered as a hepatitis C control measure and not linked to drug surveillance • N  SW Health to ensure that the Corrections Health Service have adequate resources to meet the treatment needs of opioid dependent inmates, particularly to ensure access to drug substitution programs • T  he Minister for Corrective Services to consider differentiating the punishment for the use of cannabis and injectable drugs in custodial settings.

Justice Health, Hepatitis C Services Review The Hepatitis C Services Review seeks ‘to describe… current hepatitis C services, identify gaps in services and comprehensively document recommendations’ to develop an effective model of care. The review notes hepatitis C services occur primarily within the Population Health program and are provided by public/sexual health nurses whose main focus is screening and hepatitis B vaccination. The document identifies ‘the clinical role of the Population Health Unit’ providing ‘prevention and care services,’ and to prevent and manage communicable disease outbreaks. Of 31 recommendations in the review, none specifically relate to hepatitis C prevention. The services review reports the Population Health Program, within Corrections, promotes hepatitis C prevention through ‘harm minimisation education and counselling’ with ‘some limited group health promotion and prevention programs.’ The review identifies the (then) Department of Corrective Services HIV & Health Promotion Unit as the major provider of health promotion within Corrections, and reports this unit having only three staff providing state-wide education. This is disputed by New South Wales Corrective Services who report that this unit was disbanded in 2004, and that the Offender Services and Programs staff deliver harm reduction education programs in each correctional centre.vi The review notes implications for Justice Health in developing a ‘coordinated response to harm reduction strategies,’ and that ‘the prevention, care and management of hepatitis C affected patients is core business.’ Of 137 publicly available reports from the New South Wales Independent Commission against Corruption (ICAC), eight relate specifically to misconduct occurring within the (then) Department of Corrective Services, with one report looking at events reflecting on the relationship between Justice Health and the department. One ICAC report notes49 that other jurisdictions have identified the development of specific cultures developing within individual prisons, and the role of the prison officers union: …the effect of officer culture was particularly evident in the tension between the officers as union members and Management, to the point where the Management seemed unable to require officers to do anything without first having it agreed to by the union representatives on site. vi Personal communication, NSW Corrective Services, 24 September 2010

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Strategies 54

NSW Health, NSW Hepatitis C Strategy 2007-2009 The NSW Hepatitis C Strategy 2007-2009 prioritises people who inject drugs, Aboriginal people at risk of hepatitis C, and people from culturally and linguistically diverse backgrounds. Correctional settings are identified as one of two priority settings and incarceration identified as a primary risk factor or environment for hepatitis C transmission. The strategy notes the impact of discrimination on people with or at risk of hepatitis C and reinforces the commitment to reducing hepatitis C related discrimination. One principle for reducing discrimination to people with or at risk of hepatitis C includes that ‘people with or at risk of hepatitis C are entitled to the same access to quality health care as other members of the community.’ Action Plan 1 of the strategy relates to education and prevention, with hepatitis C prevention in correctional settings being one of ten objectives which include: • Developing a strategic and coordinated approach to hepatitis C prevention in correctional centres • Strengthening infrastructure supporting hepatitis C prevention and education programs • Improving hepatitis C health literacy • Providing culturally appropriate education programs and services for Aboriginal people • M  aintaining access to the means of prevention – strategies in this section include maintaining access to ‘disinfectant solutions,’ and to ‘scope the potential for initiatives to strengthen access to hepatitis C prevention strategies to inmates and detainees’ • Reducing prevalence of injecting drug use within prisons • Improving links to safe injecting services for post-prison populations. The Department of Corrective Services, Justice Health and the Department of Juvenile Justice are identified as being responsible for undertaking this activity. The New South Wales Health HIV/AIDS, Sexually Transmissible Infections and Hepatitis C Strategies: Implementation Plan for Aboriginal People, notes the high proportion of Aboriginal people in custodial settings, and the need to ensure access to services within and after incarceration.

Justice Health, Health Service Strategic Plan Towards 2010. This plan directs future service provision. It was developed to reflect NSW Health strategic directions, and the goals of the NSW Government State Plan. The four goals of the strategic plan are to keep people healthy; provide health care; deliver high quality services, and to manage health services well. One of the seven strategic directions for the plan are to ‘make prevention everybody’s business,’ with objectives to identify people at risk and provide interventions, and reduce the impact of preventable disease. For hepatitis C, this includes providing access to drug substitution programs and screening with evaluation measure reflecting these two activities. The strategy notes the need to increase access to hepatitis C treatment.

Justice Health, Hepatitis C Strategic Plan 2007-2010 The Justice Health Strategic Plan 2007-2010 identifies risk factors for hepatitis C transmission within correctional settings as sharing injecting equipment; tattooing and body piercing; violence, and sharing personal care items such as barbering implements, toothbrushes and razors. The strategic plan identifies a series of challenges in hepatitis C service provision within corrections including the remote geographical location of some clinics; frequent relocation and movement of patients, meaning that ‘people in custody must be viewed as patients of both Justice Health and the Area Health Services,’ and the need to develop and provide appropriate services for long and short stay inmates and detainees. A fundamental challenge for health service provision noted in the plan is the different service priorities of Justice Health and the Department of Corrective Services with corrective services priorities being providing ‘security, rehabilitation and reducing recidivism’ while Justice Health focuses on a health driven service model. In relation to hepatitis C prevention in correctional settings, the strategy reports no progress in discussions about introducing a ‘prison needle syringe program.’ The document acknowledges the recommendations of the Ministerial Advisory Committee on AIDS, Sexual Health and Hepatitis (MACASHH) – Hepatitis C Subcommittee (Prison Working Group) concerning prison needle and syringe programs. The previous hepatitis C ‘strategic directions’ document produced by the then Corrections Health Service noted that the regulatory environment signals ‘an acceptance of a high risk environment for hepatitis C transmission in correctional settings.’50 While the value of bleach is contested for cleaning used injecting equipment, given the alternatives within correctional settings it is an important harm reduction intervention. The strategy notes that the dissemination of bleach is the responsibility of the Department of Corrective Services and that Justice Health staff are unable to provide a ‘disinfectant solution.’ The Justice Health strategy notes a commitment to reducing the risk of hepatitis C transmission in prisons by: • P  roviding access and maintaining the current number of people on drug substitution programs with an increase in numbers only occurring with additional funding • A  dvocating for strategies to minimise hepatitis C transmission including access to disinfection solution, safer barbering, sufficient quantities of individual personal care items, tattooing, skin piercing and prison needle syringe program • Developing hepatitis C resources relevant to the custodial environment • E  stablishing partnerships with Aboriginal Community Controlled Health Services (ACCHS) and Area Health Service (AHS) providers to improve hepatitis C prevention education programs for Aboriginal and Torres Strait Islander people.

55

Northern Territory Correctional Services, Department of Justice 56

• The Northern Territory correctional system has a low prevalence of hepatitis C with a very high percentage of Indigenous prisoners who are described in one report as ‘compliant’ • There was an 11% proportional increase in prisoner numbers between 2008 – 2009 • While legislation provides for mandatory testing of prisoners for HIV, reports indicate that this is not practiced • Health services within prisons are outsourced by the Department of Health and Families No of Prisons (Public)

3

No of Prisons (Private)

0

Prison Population @ June 09 % Prison Population who are Indigenous Hepatitis C Prevalence

1056 81.8% 8.6%

Prison capacity

736

Northern Territory Correctional Services are administered by the Department of Justice. One objective of the Department of Justice Strategic Plan 2007-2012 is for ‘a safe, humane and responsible corrections system that reduces re-offending.’ There are three prisons in the Northern Territory – the Darwin Correctional Centre; the Alice Springs Correctional Centre and the Wilderness Work Camp. The Department of Justice Annual Report 2007/08 notes the prison system operating at 103% operational capacity. In April 2008, the Northern Territory government announced the development of a new 1,000 bed prison to be built in Darwin by 2012. There was an average daily population of 947 people in full time custody in September 2008 in the Northern Territory.51 This number includes 48 women (the majority being Indigenous), and 782 Indigenous people. The Department of Justice notes a five percent increase in prisoner numbers during 2007/08 from the previous year, and a steady increase over the previous 20 years.52 This report states that Indigenous people make up 83% of the total prison population at 30 June 2008. The Northern Territory has the highest rate of imprisonment per capita, and experienced the largest proportional increase in imprisonment rates for the year to September 2008. Health care for prisoners is outsourced by the Department of Health and Families. The 2008/09 Annual Report from the Department of Justice notes the transfer of funds ($4.25m) from the Department of Justice to the Department of Health and Families for ‘prisoner primary health care management.’ The Northern Territory has not participated in the National Prison Entrant’s Blood Borne Virus and Risk Behaviour Survey. A 1999 report from the Northern Territory Centre for Disease Control notes the mandatory testing of prisoners for HIV, hepatitis B, hepatitis C, syphilis, Chlamydia, gonorrhoea and tuberculosis on admission to prison, at three and six months, annually and on discharge.53 This report showed a hepatitis C prevalence of 8.6% in Darwin prison, with similar numbers found in men and women, and reports sero-conversion events occurring during imprisonment. The report notes the unique prisoner profile in the Northern Territory with a high proportion of Indigenous prisoners from rural and remote locations and fewer injecting related offences than found in other jurisdictions. Lower rates of injecting among entrants into prisons were identified in the Report on Illicit Drugs in the Northern Territory in 2002.54 This report found 1.9% of receptions into Alice Springs, and 4.5% in Darwin prison reported injecting drugs, with lower rates among Indigenous receptions in 2001. Similar projections were made for the following year by the Correctional Medical Service.55

In correspondence to the Australian National Council of Drugs,56 the Office of the Commissioner for Correctional Services reported regular searches located no ‘more than ten needle and syringe combinations’ over a 10 year period, and that in 2004 there were ‘a number of episodes of needle sharing among prisoners’ in Darwin prison. The correspondence also notes that Northern Territory prisons do not provide condoms, bleach or sterile injecting equipment.

Legislation The major legislative instruments providing the framework for custodial services in the Northern Territory are the Prisons (Correctional Services) Act 2006, and the Prisons (Correctional Services) Regulation 1999.

Prisons (Correctional Services) Act 2006 This regulation provides ‘for the control and conduct of prisons and prisoners, and for related purposes.’ In relation to health issues: • S  ection 27 provides for the appointment of visiting medical officers, who under section 28 shall ‘perform… medical duties as the Director may specify’ • A  ccess is to be provided to prisoners to a visiting medical officer, on request to the officer in charge under section 71 • T  he mandatory testing of prisoners is provided for under section 75(2) where a prisoner ‘shall submit’ to be examined at reception into prison ‘for the purpose of determining the medical condition of the prisoner.’ Subsection 3 allows the use of force to take blood or bodily secretion with no source of redress to this action. Section 94 of the Act makes it illegal for a person ‘who is not a prisoner’ to ‘convey or deliver or allow to be conveyed or delivered to a prisoner liquor or drugs,’ while section 95A allows for drug testing of prisoners. The Prisons (Correctional Services) Regulation 1999 deals with misconduct of prisoners, which under section 3 includes anything used for tattooing, or consuming drugs or alcohol. The Northern Territory Centre for Disease Control proposed recommendations for communicable diseases control in correctional facilities in the Northern Territory which would inform the development of contracts with correctional services health providers. The document notes: • U  nlike other jurisdictions, the Department of Correctional Services can undertake mandatory testing for HIV. This intervention is not based on the recommendation of the Department of Health and Community Services, nor have many infections been detected. The document notes that it is unclear whether this testing is policy or a practice which has evolved. • A  need to identify the purpose, and response to testing of prisoners for HIV, hepatitis B and hepatitis C, and ensure that pre and post test counselling is provided. • F  uture policy for hepatitis C should consider the purpose of testing, and whether treatment should be provided in correctional settings.

57

58

Northern Territory WorkSafe developed an information bulletin providing examples of safe work practices for police, prison officers, other workers in correctional facilities and emergency response workers.57 The bulletin identifies prison officers at greater risk of infection with HIV and hepatitis B given they ‘work in a potentially hostile environment’ where they deal with ‘assaults (between prisoners, and between prisoners and prison officers), self-mutilation by prisoners, traps set by prisoners (such as needles and syringes containing blood taped to locks), and objects concealed by prisoners (such as needles and syringes containing blood).’ The bulletin highlights the need for workers to assume all blood or body fluids are infectious; that they receive training in infection control and about blood borne viruses, and use personal protective equipment.

Reviews A Review of the Northern Territory Correctional Services – Adult Custodial Operations. The Caya Review of Northern Territory Adult Custodial Services58 was requested by the Minister for Justice in 2003. The review findings focussed on organisational and operational management of prisons, rather than addressing prisoner related issues and the report recommendations were endorsed by Cabinet in March 2004 with funding of $26.5 million committed to their implementation over four years. The report does not mention health related issues with the exception of prisoners’ mental health, but makes the following points: • W  hile over 80% of prisoners are Indigenous, only 10% of the correctional services staff are Indigenous • T  he organisation structure of the department reflects a ‘sole task… to maintain prisoners in a secure environment’ • T  he Northern Territory has a more compliant inmate population than found in other jurisdictions, ‘and (are) only a threat either in or out of gaol if under the influence’ • T  he need for better legislation which ‘leaves operational details to the Commissioner’s Directives,’ and that ‘principles should be entrenched in the legislation’ • W  hile the government has committed to following the Australian Standard Guidelines ‘there is no formal process to assess compliance’ • S  pecific mental health responses are required including the development of a ‘small specialised secure mental health unit’ within Alice Springs and Darwin prisons • Funding for ‘reformative’ programs for prisoners is inconsistent and need expansion. In a discussion about change management within corrections, the review notes ‘unions being so powerful, and with such ready access to the Minister, that if (prison management) object at the local level, one may as well accept their position rather than fight it.’ The Ombudsman for the Northern Territory produced a report into an investigation into complaints from women prisoners at Darwin Correctional Centre in 2008.59 The major issue related to the lack of correctional policy or practice recognising or treating women prisoners as a specific group requiring distinct responses. Women prisoners are held in separate blocks within the Darwin and Alice Springs prisons. The report notes the lack of services and the high level of mental health issues for women prisoners. The impact of possibly receiving a positive test result for hepatitis C or HIV by a person with mental health issues who has recently been incarcerated was not mentioned in the report.

Two Coroner Court Reports concerning deaths in custody of two Indigenous men60 discuss the provision of health services from the privately run Custodial Medical Services. Issues raised in the reports include the amendment to the contract of medical services by the Department of Correctional Services. This includes a trial of a nurse inspection of prisoner health at reception rather than the legislative requirement for the inspection by a medical officer; that blood screening carried out at reception of prisoners looks at infectious disease rather than a broader health check, and the compliance of Indigenous prisoners in relation to health issues.

Strategies No strategic responses to issues relating to the transmission of hepatitis C within Northern Territory correctional settings were identified.

59

Queensland Corrective Services 60

• Health services for inmates transferred from Queensland Corrective Services to Queensland Health in 2008 • Queensland is one of two jurisdictions in which imprisonment rates were reduced between 1999 and 2009 (by 6%) • Significant reviews of the Queensland correctional system have occurred over the past 25 years with a 1988 review noting unsatisfactory and inadequate health services • The State Coroner added to calls for regulated needle and supply within correctional settings in a 2004 report. No of Prisons (Public)

16

No of Prisons (Private)

2

Prison Population @ June 09

5629

% Prison Population who are Indigenous Hepatitis C Prevalence

27.8% 45% – women; 53% – men

Prison capacity

6439

The ‘core purpose’ of the Queensland Corrective Services is ‘to foster community safety and crime prevention through humane containment, supervision and interventions for offenders.’ Queensland has thirteen correctional centres, including two private prisons – Borallon, operated by Serco, and Arthur Gorrie operated by GEO Group. Health services within Queensland correctional settings transferred from Queensland Corrective Services to Queensland Health on 1 July 2008, with a new branch, Offender Health Services established within Queensland Health. One Queensland Health document describes the branch as Responsible for the delivery of health and medical services to prisoners in correctional facilities. Located across 11 correctional health centres in Queensland and a corporate unit in Brisbane, the Branch employs over 180 staff with an annual expenditure of approximately $30 million. The two key functions of the branch are: Clinical Services and Strategic Performance and Development. The Australian Bureau of Statistics data on Corrective Services61 report an average daily prison population of 5,547 at the end of June 2008 in Queensland which includes 409 women and 1511 Indigenous people. The report notes Queensland has the largest proportional decrease nationally in imprisonment rates between June 07 and June 08, with a one percent decrease in Indigenous imprisonment rates. The Queensland Women Prisoners’ Health Survey62 undertaken by Queensland Corrective Services in partnership with the University of Queensland found a 45% hepatitis C prevalence rate in 2002, with 34 of 212 (16%) women prisoners reporting injecting while in prison. Of these women, 62% used a needle that had been previously used, and only three of the 34 women who reported injecting while in prison used sterile injecting equipment for their last injection. Male prisoners are reported as having a 53% hepatitis C prevalence rate in 2007, compared to 48% in 2004.63 The 2008/09 State Budget Service Delivery Statement for the Department of Corrective Services notes the transition of health and medical services from Queensland Corrective Services to Queensland Health occurred because of an increasing prevalence in the prisoner population of mental health issues, psychological disorders, physical infirmities, and problems resulting from ‘substance’ and alcohol abuse.

Legislation There are several regulatory frameworks operating within Queensland prisons including the Corrective Services Act 2006 and the Corrective Services Regulations 2006. Internally the department promulgates policies and procedures. The legislation covering correctional settings has not been updated as a result of the changes in responsibility for delivering health services within correctional settings (at Jan 2010).

Corrective Services Act 2006 The Act reiterates the purpose of corrective services, and that ‘basic human entitlements’ should be safeguarded other than those ‘necessarily diminished because of imprisonment.’ The Act recognises ‘special needs’ including ‘any disability a person has.’ In relation to health related issues, the following sections apply: • Section 283 – The chief executive must appoint at least one doctor for each prison. • U  nder section 284, the doctor must examine and treat prisoners at the prison to which the doctor is appointed and ‘required by the chief executive to perform what the doctor is qualified to perform.’ This may include being authorised under section 39 by the chief executive to conduct a body search of a prisoner. • A  prison must ‘submit’ to a medical examination or treatment if a doctor considers the prisoner requires treatment under section 21. Section 265 requires the ‘chief executive’ to determine administrative procedures for the ‘effective and efficient’ management of prisons, and that these procedures must ‘take into account the special needs of offenders.’ Under section 266, the chief executive ‘must’ establish programs for the medical welfare of prisoners.

Corrective Services Regulation 2006 Section 20 of the regulations describe a ‘syringe or other device capable of administering a drug’ as a ‘prohibited thing’ under breaches of discipline. The two primary pieces of legislation are relatively new, and Queensland Corrective Services produced a booklet detailing changes made to previous legislation with the introduction of the Corrective Services Act 2006.64 These changes included the appointment of a Chief Inspector to undertake ‘authorised inspections of corrective services facilities,’ with other changes related to security; staff and visitor safety, and rehabilitation (S 294). A four-page booklet describes the role of the Office of the Chief Inspector within Queensland Corrective Services (QCS), as ‘one of a suite of measures designed to maintain transparency and accountability for corrections in Queensland.’65 The inspector is to independently scrutinise ‘the treatment of offenders, and the application of standards and operational practices within the State’s correctional centres.’ The assessment of prisons uses a ‘healthy prison’ model where the weakest prisoners feel safe; prisoners are treated with respect as individuals; are fully and purposefully occupied and are expected to improve themselves, and can strengthen their links with their families and prepare for release into the community. Key outcomes of the healthy prison are that individual prisoners are protected from harm by themselves and others, and that health care is provided to the same standard as in the community, available in response to need, with a full range of preventative services, promoting continuity with external health services upon release. The Office of the Chief Inspector reports internally to Queensland Corrective Services.

61

Internal Regulation 62

Two internal regulatory instruments operate within Queensland prisons – policies (n=10) and procedures (n=211). Policies affecting hepatitis C prevention include the Drug Strategy 2006, Tackling Drug Abuse and Addiction; Changing Lives in Queensland Prisons and Addressing Illicit Drug Use by Offenders (undated). Of the 211 procedures, several relate to hepatitis C prevention: • Communicable Diseases • C  ommunication Protocols for Queensland Corrective Services Correctional Centre and Queensland Heath Centre Staff • Discharge of Prisoners – Queensland Health Centre Staff • Drugs of Dependence • Health and Medical Services • Infection Control • Methadone Treatment • Needle/Syringe Register • Needle and Syringe (Sharps) Control. An explanatory note for the policy framework operating within Queensland Correctional Services details delegations and procedures.66 The framework identifies three types of policy – government endorsed, departmental policy and departmental procedures. Each level of policy ‘has a particular authorising environment and may have related ancillary documents and measurement tools.’ Different approval processes and timeframes for each type of policy are defined.

Communicable Diseases This procedure seeks ‘to minimise the risk of illness and the spread of infection within corrective services facilities and provide for detection and management of communicable diseases’ through: • Vaccination • Reporting of communicable diseases using Queensland Health guidelines • P  revention of the transmission of communicable diseases occurs though a ‘three phase program’ of blood screening, hepatitis B vaccination and implementation of infection control • M  anagement of diseases in accordance with the ‘Disease and Infection Management’ appendix (not listed as one of the 211 procedures, but publicly available) and the Queensland Health Communicable Diseases Control Manual.

– T  he Queensland Health Communicable Diseases Control Manual notes hepatitis C prevention occurring through education about ‘risk factors particularly injecting practices (eg. use clean injecting equipment, needle and syringe programs) and household risks, eg. avoid sharing razors, toothbrushes’



– T  he Disease and Infection Management appendix, which includes tracked changes from 2003 made by the department, notes



> The need for pre and post test counselling



> Testing can be requested with no need for a history of risk behaviour



> P  revention of hepatitis C transmission occurs through ‘needle availability, education re risk factors particularly injecting practices, & household risks. If not immune to Hep A and B, offer immunisation.’

Communication Protocols for Queensland Corrective Services Correctional Centre and Queensland Heath Centre Staff These protocols prescribe ‘regular communication and relationship exchanges’ between correctional and health staff for the ‘effective delivery of health services’ in a context where health services are being delivered by Queensland Health. The procedure notes effective health service delivery within correctional settings requires the ‘support and goodwill of staff’ and that ‘Queensland Health is responsible for ensuring the delivery of health services to offenders in line with standards of quality, access and effectiveness.’ Health information remains confidential while providing for situations where information can be provided ‘in broad terms or in the form of practical advice.’ Discharge of Prisoners – Queensland Health Centre Staff To ensure the ‘continuity of health care for prisoners following release,’ this procedure provides for Queensland Health staff to interview each prisoner prior to release to make sure that follow-up medical needs are met. A Discharge Health Report (not one of the 211 procedures, but publicly available) is to be completed. Drugs of Dependence Provides for the prescribing ‘drugs of dependence’ while excluding prescribing of opiate substitution programs. Health and Medical Services This procedure ensures ‘that all aspects of health services will be planned, organised, controlled and implemented by health professionals to provide quality standardised care to all persons within the facilities.’ The procedure covers the following areas: • Medical and dental examination • Psychiatric services • Health services for women including gynaecological care, pap smears, obstetrics and terminations • Visitors and staff. No mention is made of health promotion, and while seeking standardised care, the existence of local procedures in specific prisons is noted.

Infection Control This procedure recognises that ‘body fluids are the primary vehicle for disease transmission’ with the basis of infection control being standard precautions. The procedure addresses: • Facility cleaning with cleaning equipment including the availability of bleach • Personal hygiene • S  afe storage of invasive equipment including health services staff being responsible for ‘the prevention of access of prisoners to sharps and syringes’ • Sterilisation of medical equipment • Disposal of contaminated waste material • Blood spill kits being ‘strategically placed to ensure their availability to staff in emergencies’ • H  air cutting equipment with plastic guards used at all times and soaked in an appropriate sterilising solution between uses.

63

64

Methadone Treatment Methadone access should be provided ‘at the same standard available to the community’ and refers to the Queensland Health methadone policy. The number of places on the program is dependent on demand and available budget. Needle/Syringe Register This procedure seeks to ‘ensure consistent accountability of needles and syringes within corrective services facilities’ through registering, and checking needles and syringes once every 24 hours. Needle and Syringe (Sharps) Control Another accountability procedure to ensure a ‘safe environment for prisoners and staff.’

Reviews Correctional services in Queensland have been extensively reviewed since 1988. Explanatory Notes for the Corrective Services Bill 2000 identify legislative changes for corrections resulting from the Queensland Corrective Services Review’s report, Corrections in the Balance in January 1999.67 This report assessed the effectiveness of the previous legislation covering Queensland correctional services and noted that there was an ‘urgent need’ for adopting a ‘simpler, more effective and more accessible’ legislative and policy framework. The review also recommended the need for ‘consistent and state-wide departmental policies.’ This 1999 review came after the 1993 Review of the Queensland Corrective Services Commission,68 which in turn identifies a previous review in 198869 where it was recognised that ‘prison officers were poorly trained and supported, the parole system was unfair and inefficient and that there was little real attempt to do anything other than lock up prisoners.’ The 1988 review noted ‘unsatisfactory and inadequate’ health service provision in prison and recommended the establishment of a hospital operated by Queensland Health at Wacol; that a position of Manager, Medical and Health Services be created to ‘develop and manage the interaction between the Commission and the Health Department,’ and that alcohol and drug counselling services be developed at each correctional centre. The 1988 review led to the establishment of the Queensland Corrective Services Commission. The executive summary of the 1993 report notes that: • A  dynamic process of reviewing the correctional system had been established with significant progress made in reforming the correctional system • C  ommunity involvement had occurred by establishing a ‘community based’ board overseeing the operation of the correctional system, the establishment of community corrections boards replacing parole boards, and official visitors • There is a need to address the proliferation of ‘unwieldy and confusing’ rules and regulations • A  n ‘extreme sensitivity to criticism’ of the commission exists at the same time that the commission has a ‘clearly stated vision’ • W  hile it was recommended in 1988 that Queensland Health take over all psychiatric services, ‘funding issues have prevented this occurring.’

The summary findings of Corrections in the Balance – A Review of Corrective Services in 1999 reported: • T  he organisational structure of a commission and board is no longer required, with simpler accountability and reporting process proposed • The level of oversight of private prisons is inadequate • C  urrent legislation does not adequately cater for Indigenous people who are over-represented within prisons, and under-represented in management structures • A  n urgent revision of legislation as the ‘current Acts are unworkable’ and ‘unnecessarily complex and cumbersome.’ INCorrections – investigating prison release practice and policy in Queensland and its impact on community safety was produced by the Faculty of Law at the Queensland University of Technology in November 2004.70 The review notes the high prevalence of hepatitis C within the correctional setting and recommended implementing ‘best practice’ with the provision of ‘needle exchange facilities in all prisons.’ The published Queensland Corrective Services response71 to this recommendation was Given the illegality of drug taking, and associated risks to health and safety, the Department will not condone the use of needle exchange programs in prisons. The Department will not back away from its zero tolerance approach to illegal drugs or allow prisoners to use syringes – potential weapons – or mood altering substances that can make prisoners more difficult to manage. The Department will provide safe correctional environments were (sic) drug related incidents are minimized so offenders reintegrating into the community are free from addiction. The Department’s zero tolerance approach is further backed-up by a range of other safeguards including; searches, drug detection dogs, regular urinalysis, IONS electronic detection devices, phone call monitoring, and mail interception. The Review of the Corrective Services Act 2000 was undertaken in 2004, and reported in 2005.72 Little mention of health was made in the review with the exception of mental health related issues and that there needed to be a ‘greater focus on the medical needs of prisoners, particularly in relation to the management of communicable and sexually transmitted diseases within correctional centres.’ A report on the roles and functions of Queensland correctional centres73 reviews the Queensland Corrections Service business model. This review notes the growth in prisoner numbers requires additional infrastructure; emerging issues and trends in relation to managing prisoners, and an increasing acknowledgement of community expectations. The report notes the necessity to ‘deliver a comprehensive range of substance abuse and dependence interventions given the high levels of drug dependence amongst prisoners entering the correctional system.’ No mention is made of infectious diseases associated with drug dependence.

65

66

The 2006/07 Annual Report for Queensland Corrective Services notes activities undertaken to ‘minimise harm and reduce drug use by offenders to foster drug-free lifestyles within prison and the wider community’ include: • Increased mental health services at all secure centres • Delivery of the Transitions Program to female and Indigenous prisoners • D  elivery of Getting SMART: Moderate intensity substance abuse program and SMART Recovery maintenance programs for prisoners and offenders on probation and parole orders • Delivery of the Pathways High Intensity substance abuse program to prisoners • Implementation of the Queensland Health funded Indigenous Peer Education Program at Lotus Glen Correctional Centre – ‘a structured peer-based program addressing the complex issues surrounding drugs, alcohol and the transmission of blood-borne viruses and sexually transmissible diseases within the context of the correctional system’ • Introduction of GE Itemisers at all Queensland secure custody centres. These state-of-the-art drug detection devices screen visitors and described as highly portable and capable of detecting minute quantities of substances • Drug testing at all correctional centres • T  rial of a Drug Free Incentive Scheme at Woodford and Brisbane Women’s correctional centres in June 2007. The Queensland Ombudsman Annual Report 2006/07 notes that health and medical issues made up 4.83% of the complaints received from prisoners. No further information about the complaints was noted in the report. The Queensland Health Systems Review addressed the performance of Queensland Health’s ‘administrative and workforce management systems.’74 The report came as a result of ‘public disquiet about the quality and safety of public hospital services,’75 in part resulting from events at Bundaberg Hospital. The report recommended that ‘health care in correctional institutions be resourced adequately and Queensland Health and Department of Corrective Services seek agreement on the best future delivery options.’ Justification for the recommendation included • P  rison populations experience ‘vastly worst health status,’ have a much higher representation of Aboriginal and Torres Strait Islander people, and people suffering from mental health problems, than the broader community • The movement of prisoners between prison and the community • The need for ‘adequate’ and needs based health service provision within correctional settings • T  he limitations in health care delivery within correction settings, with health services not being core business of correctional service management and evidence that health priorities are not being adequately addressed • Political and managerial decisions are made about health which should be decided by clinicians. The report notes the difficult political and bureaucratic climate at the time for transferring responsibility from Corrections to health, but that discussions should be held to determine the best model for the delivery of health services within correctional settings.

The Office of the State Coroner undertook an inquest into the accidental overdose of a prisoner in 2004.75 The prisoner had a history of drug use; had positive urinalysis on 15 occasions while in custody, and had been placed on drug management plans three times. The coroner notes that ‘none of the plans succeeded in remedying Mr F’s… tendency to abuse illicit drugs.’ The coroner noted that the Corrections Department ‘recognises that while the total elimination of drugs from prisons is a worthwhile long term goal it is not achievable in the short term.’ In implementing the corrections drug strategy, the coroner noted its three goals and interventions being undertaken: • R  educing the supply through intelligence analysis, surveillance and searches. The coroner noted the intelligence section was under-resourced particularly given the growth in prisoner numbers • R  educing the demand – the report identified difficulties for medical staff in dealing with reservations when implementing the methadone program • H  arm minimisation – the coroner characterised interventions implemented under harm minimisation as ‘limited to an information campaign.’ The coroner recommended implementing a prison based needle and syringe program: In view of the inability of the Department of Corrective Services to keep prisons drug free, and in recognition of its obligation to minimise the spread of blood born (sic) viruses among the prison population and those prisoners will come in contact with after release, I recommend that prisoners be given access to clean syringes.

Strategies The Queensland Corrective Service 2006 Drug Strategy – Tackling Drug Abuse and Addiction, Changing Lives in Queensland Prisons ‘enshrines a zero-tolerance approach to drug use within a context of harm minimisation.’ The strategy notes that ‘although abstinence may be a long term goal, safe drug taking practices must also take priority in the short-term to reduce the spread of blood borne virus and to reduce the possibility of overdose.’ While advocating harm minimisation, and while the supply and demand strategies reflect those of the National Drugs Strategy, harm reduction interventions occur through an ‘acknowledgment that drugs and the manner in which they are taken can have negative effects on users and the wider community.’ The strategy notes harm reduction programs ‘inform about harm associated with drug use, the effects of different drug types, short and long term consequences of drug taking and issues concerning overdose and unsafe injecting practices.’ The strategy allows bleach availability through medical centres in ‘an informal and consistent manner, without trigger for investigation or other repercussion.’ Opioid substitution therapy is available for remandees, people on short sentences and pregnant women. The drug strategy provides for differential penalties in the use and detection of cannabis given that ‘cannabis use in prison by itself does not present a risk of overdose or transmission of blood-borne virus.’ The strategy rationalises differential management of cannabis as • T  races of cannabis stay in the body longer and have a significantly greater chance of being detected through urine drug testing • G  reater risks of overdose and/or transmission of blood-borne viruses with drugs which less easy to detect through testing • Increased prevalence of injecting drug use leading to heightened levels of tension and violence; higher risks of needle stick injuries, and greater likelihood of contracting blood-borne viruses such as HIV and hepatitis C • U  se of other orally administered drugs may lead to aggressive behaviour which threatens the security of the prison.

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The differential penalties are established in procedures rather than legislation. 68

An undated document entitled Addressing Illicit Drug Use by Offenders from the Department of Corrective Services identifies drug use as the ‘single largest factor impacting on the lives of offenders’ with a commitment of the department to the reintegration of ‘unaddicted offenders.’vii The Queensland Corrective Services Strategic Plan 2008-2012 makes little comment about health issues. The Women Offenders Policy and Action Plan 2008—2012: Improving outcomes for women offenders notes one activity for Offender Programs and Services being the development and implementation of a HIV, Hepatitis C and Transmissible Infections Strategy. The Queensland Corrective Services Prisoner Information Booklet provides basic information for prisoners upon entry into the system. Health related information in the booklet refers to medical examination upon entry; counselling; suicide prevention; illness or injury, and exercise. The booklet contains no information about preventing the transmission of hepatitis C. Prisoners are not mentioned in the Queensland Health Population Health Plan 2007-2012 or in the Queensland Statewide Health Services Plan 2007-2012. Several activities are identified in the Queensland HIV, Hepatitis C and Sexually Transmissible Infections Strategy 2005-2011 relating to hepatitis C in correctional settings, including: • Coordination and administration of the Interdepartmental Working Group on Public Health in Prisons • Provision of opportunities for prisoners to input into policy changes • D  evelopment of collaborative education and prevention initiatives with other relevant government and non-government departments e.g. Prisons Lifestyle Project and the Healthy Women’s Initiative in Cape York • Implementation and evaluation of initiatives from the Prisons Lifestyle Project • P  rovision of services to prisoners at the same standard provided in the wider community within the operational limitations of a correctional facility • S  creening of prisoners ‘appropriately’ at reception and during imprisonment with screening and management consistent with State policy and recognised best practice • Availability of culturally appropriate educational material to prisoners • Increase in access to anti-viral treatment for hepatitis C. The 2006/07 annual progress report for the Queensland HIV, Hepatitis C and Sexually Transmissible Infections Strategy notes ‘enhanced collaboration with the Department of Corrective Services in relation to specific issues on Hepatitis C,’ although no details of this are provided. Other activity undertaken in prisons related to hepatitis C includes: • C  ollaboration between the Department of Corrective Services and government and non-government organisations in delivering staff and inmate training • Training health staff on pre and post test counselling • A Reception Awareness program with first offender prisoners at the Arthur Gorrie Correctional Centre • Q  ueensland Health funding of the Correctional Facilities Education Project for prisoners and staff by Family Planning Queensland.

vii The properties for the PDF document are dated 2002 and it may be a precursor to the 2006 Drug Strategy.

Department for Correctional Services, South Australia • There is little publicly available information on the internal regulatory operation of the Department for Correctional Services

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• A strong ‘tough on crime’ focus was noted by South Australian informants which was having a significant impact on the services provided within correctional settings • Over one-third of South Australian prisoners are unsentenced • The 2002 South Australian Drug Summit recommended establishing a regulated needle and syringe program and increasing access to opiate substitution programs within correctional settings. Access to opiate substitution increased. • Health services are provided by the South Australian Prison Health Service (SAPHS), a division of the Central Northern Area Health Service (CNAHS). No of Prisons (Public)

8

No of Prisons (Private)

1

Prison Population @ June 09 % Prison Population who are Indigenous Hepatitis C Prevalence

1935 22.9% 33% (low numbers participating)

Prison capacity (Australian Institute for Criminology)

1698

The purpose and aim of the Department for Correctional Services in South Australia is to ‘rebuild lives affected by crime and to be recognised as a leader in building a just and fair society where the supervision and rehabilitation of offenders is humane and the rights of victims are respected.’ South Australia has nine adult correctional centres, including one private prison. There has been a significant rise in the number of prisoners in South Australia in recent years and an additional men’s prison with 760 cells; a women’s prison with 150 cells; a pre-release centre with 80 beds; a ‘Secure Youth Training Centre’ and a 40 bed ‘Forensic Mental Health Centre’ are being built. These facilities will replace the Yatala Labour Prison, the Adelaide Women’s Prison and the Adelaide Pre-release Centre. The 2008/09 Annual Report from the Department for Corrective Services notes that this plan was cancelled ‘as a result of the global financial crisis and the impact on the state’s fiscal position,’ and that funding would be provided for upgrading current services. The ‘Memorandum of Information’ for the development of the (then) proposed South Australian prisons stated that the contractors for the prison will Provide an appropriate medical and rehabilitation programme service. The PSP (Private Sector Partner) may be responsible for the procurement of medication, and conjunction with other services (sic). The PSP may be responsible for the management of care plans and dispensing of medications including appropriate rehabilitation programmes such as substance abuse etc’ The Australian Bureau of Statistics report on Corrective Services shows 1,960 inmates in South Australia on the 30 June 2009 including 121 women and 418 Indigenous people.76 South Australia had the largest proportional increase nationally in imprisonment rates of Indigenous people in the June 2008 quarter.77 The departmental website identifies that the prison system has a total capacity of ‘almost 1630 men and women’ while the annual report notes a 15% increase in prisoner numbers over the past five years. Indigenous people made up 23% of the prison population at the 30 June 2009, compared with 16.8% in 2003.

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Health services within South Australian prisons are provided by the South Australian Prison Health Service which is a unit of the Central Northern Adelaide Health Service and funded by the Department of Human Services. The Prison Health Service, report that the 13% increase in inmate numbers in 2007/08 resulted in an increased demand with a ‘reform process… being implemented.’ Health services at the private prison are funded by the department and operated by G4S Custodial Services Pty Ltd.78 On its website the department reports that, based on research, the male prisoner population can be assumed to have a hepatitis C prevalence rate of 37% while the female prison population has a hepatitis C prevalence of 66%. The department identifies the establishment of an Intelligence and Investigations Unit to ‘control the trade in drugs into prisons.’ While South Australia appears to have participated in the National Prison Entrants Bloodborne Virus and Risk Behaviour Survey 2004 and 2007, data findings are not separately reported. The summary of the report notes 33% of male prisoners tested were infected with hepatitis C.79

Legislation The Correctional Services Act 1982 provides: For the establishment and management of prisons and other correctional institutions; to regulate the manner in which persons in correctional institutions are to be treated by those responsible for their detention and care; and for other purposes. In terms of regulations affecting the transmission of hepatitis C within correctional settings, the following sections of the Act are noted: • S  ection 19 of the Act states ‘all correctional institutions established under this Act are under the control of the Minister’ • S  ection 83 allows for the manager of a correctional institution with the approval of the Chief Executive Officer, to make rules for the management of the institution • S  ection 83(4) requires rules to be published for the benefit of prisoners including for prisoners who are ‘illiterate or whose principal language is not the English language’ • S  ection 23 provides for an annual medical assessment of each prisoner who has been sentenced for a term for more than six months. • 37AA allows for the manager of a correctional institution to require a prisoner to undergo a drug test. The Act provides for the ‘continuation’ of the Corrective Services Council; lists its membership requirements and how often the council is to meet. The legislation states the council will • Monitor and evaluate the administration and operation of this Act • Report to the Minister on any matter referred to the Advisory Council by the Minister • R  eport of its own motion to the Minister on any matter pertaining to the administration or operation of this Act • Perform such other functions as may be prescribed by or under this Act, or any other Act. The council is to produce an annual report to the Minister which is to be provided to Parliament. The South Australian Hansard of the 13 November 2007 reported tabling of the Correctional Services Advisory Council Report 2006-07 although the report could not be located. The Democrats website identified concerns in 1998 that the council is ‘virtually defunct’ and that the department was ‘disenchanted’ with the advice being provided. In response to a query, the Department for Correctional Services identified the ‘present membership’ of the council being Ian Shephard as Presiding Member; Lindsay Thompson as Deputy Presiding Member, and Patrick Forster, Anne Bachmann and Helena Jasinski as Members.

Correctional Services Regulations 2001 In relation to hepatitis C transmission, these regulations: • P  rohibit items including drugs of dependence or prohibited substances; a syringe or needle or a device used for the administration of a drug of dependence (Section 9) • M  ake it unlawful for a prisoner to supply or administer drug to themselves or another person (Section 20) • D  irect that inmates undergo specified medical examinations or tests for the purposes of assessing prisoners or ‘for preventing or containing the spread of disease within correctional institutions.’ Section 21 of the Regulations provides different periods of time in which a defence can be mounted for a positive urinalysis test for illicit drugs. The regulations prescribe that this be 70 days for cannabis, in comparison to seven days for opiate or amphetamine type drugs between positive test results.

Internal Regulation There are several regulatory frameworks operating within South Australian prisons, including the Correctional Services Act 1982; the Correctional Services Regulations 1982, and the Correctional Services Variation Regulations 2005. Internally the department promulgates Policies, Service Specifications and Standard Operating Procedures. The policies listed on the website include: • Constructive Day ‘Prisoner Regimes’ • Staff Education • Offender Art Production • Alcohol and Other Drugs • Throughcare • Restorative Justice • Rehabilitation • Humane Care • Strategic Management. The website states that these documents are ‘currently unavailable’ and a request was made for a copy of the policy relating to drugs and alcohol. The 2006/07 Department for Correctional Services Annual Report notes that the Alcohol and Other Drug Strategy ‘incorporates an integrated approach to supply and demand reduction.’ No mention of harm reduction is made in the report. The report states that the department should Intercept the supply of illicit drugs in the prison system through the use of information gathered by the department’s Intelligence and Investigations Unit, and the activities of the Operations Security Unit. The department’s strategy also seeks to identify and target the extent of prisoners’ drug problems, and provide programs to help them overcome these problems.’ A copy of a Standard Operating Procedure – Safety and Security was located by the project. It details procedures in response to needlestick injury and/or exposure to blood and body fluids.

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Reviews 72

One priority of the South Australian government’s Social Inclusion Initiative in 2002 was facilitating the South Australian Drugs Summit 2002. A series of working groups were established to oversee various themes and included ‘Illicit Drugs and Correctional Services.’ An Issues Paper was developed for summit delegates by the Department of Correctional Services (sic) with key points in relation to hepatitis C prevention being: • ‘Despite rigorous efforts… there remains some undetected entry of illicit drugs’ • T  he prohibition of drug use in prisons means drug use occurs in ways that increase harm including the re-using and sharing of injecting equipment • D  ata from South Australia suggest seroconversion rates for hepatitis C in prison are more than 17 times greater than in the community (Miller & Bunting, 2002). • A  collaboration between the Department for Correctional Services and the Drug and Alcohol Services Council (DASC) developed a Drug and Alcohol Strategy to address the needs of the correctional services system (no copy of this strategy has been located) • E  vidence shows that of the 19 sanctioned needle and syringe programs operating in prisons in other countries, no incidents involving the use of injecting equipment to harm staff or other prisoners have been reported (Rutter et al., 2001). • T  here is a need to investigate interventions to reduce the transmission of hepatitis C within prison settings. The working group received ‘strong support’ for the following recommendations: • Increased availability of treatment, education and rehabilitation • Stronger emphasis on release planning • Strengthening of community based management • Drug treatment and rehabilitation program for juveniles • Provision of a clean needle program and opiate substitution program. Two reports of government activity arising from the recommendations of the summit have been published and an evaluation developed of the Drug Summit initiatives. The first government response did not address the establishment of the clean needle program in correctional settings, although noted an expansion of the drug substitution program. The second report noted an increase in access to opioid substitution program and in the provision of psychological and mental health services offenders with substance abuse issues. The ‘First Stage Evaluation Report’ of the Drug Summit Initiatives noted an expansion of the Prison Opioid Substitution Treatment Program in all prisons, with the exception of the privately operated Mt Gambier prison. No mention was made of implementing the prison clean needle program.

The review of the South Australian HIV strategy operating between 1997 and 1999 made several recommendations related to preventing the transmission of hepatitis C within correctional settings including: • A  s a matter of principle, prisoners have similar access to health promotion, health care and harm minimisation initiatives as the rest of the community • A  ll prisoners have access to high concentration bleach and explicit needle cleaning information and education • In the interests of public health, the Department for Correctional Services investigates introducing a clean needle program into South Australian correctional facilities • T  he Department for Correctional Services, the Department of Human Services and the Aboriginal Health Council work together to develop and implement a sexual health and communicable disease prevention program targeted at prisoners from Indigenous backgrounds. The review notes the Department for Correctional Services agreeing that it was impossible to stop the flow of drugs into South Australian prisons, and that there was no way of eliminating the risk of viral transmission from used needles and syringes. A thesis submitted by Emma Miller in 2006 investigated Hepatitis C Infection in South Australian Prisoners – Prevalence, Transmission, Risk Factors and Prospects for Harm Reduction. This report found a high prevalence of hepatitis C among prisoners in South Australia, particularly in women prisoners and Indigenous prisoners, with the exception of Indigenous prisoners from the north of the state. A low rate of hepatitis C incidence was observed while the prison seroconversion rate was significantly higher than for people at risk in the community. Study participants reduced risk behaviour whilst in prison, with only a small proportion reporting any injecting or tattooing during the study. People with hepatitis C were more likely to report injecting while in prison. Three participants were initiated into injecting during the study. The report notes the opioid replacement program is currently the only strategy aimed at reducing the transmission of blood-borne viruses between prisoners. While the author established a ‘persuasive argument’ for a clean needle program they also noted such a program was unlikely given the current culture within the Department for Correctional Services. The South Australia Ombudsman Annual Report 2006-07 notes that 48% of the 1353 complaints about government departments during the financial year related to the Department for Correctional Services. The only reports published by the Ombudsman are annual reports, and there is little detail on the types of complaints made against the department.

Strategies The South Australian Hepatitis C Action Plan 2009-2012 notes the high prevalence of hepatitis C within corrections settings, with inmates being one of the priority populations at risk of hepatitis C infection given the proportion of the prison population having a history of injecting drug use, with a ‘significant proportion’ of inmates who inject while in prison, and the lack of sterile injecting equipment and tattooing implements within correctional settings. Activities highlighted within the action plan including the development of hepatitis C screening, health promotion and prevention programs, including a peer education program, and targeted hepatitis C treatment programs for Aboriginal inmates in custodial settings.

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While the review of the South Australian HIV/AIDS strategy in 2000 made several recommendations for reducing viral transmission in prisons, the subsequent strategy, Meeting the Challenge – Fourth South Australian HIV Strategy 2002-2005 makes few mentions of the development and implementation of strategies within the prison environment. The most recent HIV/AIDS strategy, the HIV Action Plan, 2009-2012 notes a need to increase access to HIV and STI information and testing for inmates. The South Australian Drug Strategy 2005 – 2010 makes no specific mention of prisoners or correctional settings with the exception of the drug diversion program but notes that a principle of the strategy is of a ‘whole of community approach’ with implementation needing to occur across the community.

Tasmania Prison Service, Department of Justice • Tasmania reported the highest percentage increase (45%) in per capita imprisonment rates between 1999 and 2009 • Significant enquiries into the operation of Tasmanian prisons over several years have occurred with one enquiry reviewing hospital based health service delivery in correctional settings • In 1999 the then Opposition urged the Government to implement a regulated needle and syringe program within correctional settings • Correctional legislation specifically exempts pre test counselling provisions of the HIV/AIDS Preventive Measures Act 1993 No of Prisons (Public)

6

No of Prisons (Private)

0

Prison Population @ June 09

522

% Prison Population who are Indigenous Hepatitis C Prevalence

12.3% 25% (based on small numbers)

Prison capacity

643

The mission of the Tasmania Prison Service is ‘to contribute to a safer Tasmania by ensuring the safe, secure containment of inmates and providing them with opportunities for rehabilitation, personal development and community engagement.’ The Prison Service is administered by the Department of Justice. Prison health services are delivered by the Department of Health and Human Services (DHHS) by the Correctional Primary Health Service (CPHS) in the Population Health Division. Services provided by the Correctional Health Service include: • Medical assessment, including mental health, on entry to prison • M  anagement of health problems including treatment of existing conditions, drug and alcohol issues, mental health assessments • P  reventative health programs, including sexual health education, drug and alcohol education, immunisation, lifestyle assessment and education • Provision of a drug substitution program. The Correctional Primary Health Service and the Population Health Division share a Blood Borne Virus Program Coordinator who developed a Correctional Health Blood Borne Virus Strategy in 2009 and established a Blood Borne Virus Working Group consisting of representatives from the Tasmanian Prison Services and the Department of Health. The 2008/09 Department of Justice Annual Report noted the Correctional Primary Health Service worked with the Tasmanian Health Service on the development of an Alcohol and Drug and Blood Borne Virus (hepatitis C) strategy. The Tasmania Prison Services operates six publicly funded correctional centres. The Department of Justice Annual Report 2007-08 reports a daily prisoner population in 2007/08 of 539 prisoners, consisting of 502 men and 37 women, including 70 Indigenous prisoners (13%). Tasmania experienced the largest proportional decrease in prisoner numbers (5%) during the 12 months to September 2008 and has the lowest per capita Indigenous imprisonment rate.80

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The National Prisons Entrants Bloodborne Virus and Risk Behaviour Survey (2008) found 25% of prisoners participating in the survey in Tasmania in 2007 were infected with hepatitis C, a decrease from the 2004 survey (48.2%).81 The figures are based on a very small sample. In a presentation to the first Annual ATDC (Alcohol, Tobacco and other Drugs Council Tasmania) Conference, Dr Chris Wake, Clinical Director, Correctional Primary Health Service noted: • No hepatitis C related policy on tattooing, body piercing or barbering in prisons • It was ‘commonplace’ to find fresh injection marks on prisoners presenting to the clinic • Anecdotal evidence from prisoners of ‘plenty of fits and… drugs in the prison system’ • Bleach not available within Risdon Prison – the major correctional centre in Tasmania • Under-resourced and uncoordinated drug and alcohol services to prisoners.

Legislation The major legislative instruments providing the framework for providing correctional services in Tasmania are the Corrections Act 1997 and the Corrections Regulation 2008.

Corrections Act 1997 The Corrections Act 1997 provides ‘for the establishment, management and security of prisons and the welfare of prisoners …’ Section 4 of the Act describes ‘guiding principles,’ including that prisoners ‘retain their normal rights and responsibilities as citizens, except as these are limited in accordance with law’ and in Section 29 (f) that prisoners have ‘the right to have access to reasonable medical care and treatment necessary for the preservation of health.’ Section 28 of the Act allows drug testing and searching of prisoners ‘in the interests of the management and good order.’ The testing of prisoners for HIV and other blood borne viruses on admission into prison or at regular intervals is permitted under Section 30 of the Corrections Act. Prisoners who refuse testing are to be counselled ‘of the necessity or desirability of undergoing the test,’ and positive test results are provided to the Director. The provisions of the HIV/AIDS Preventive Measures Act 1993 regulating pre-test counselling are specifically exempted in the Corrections Act in Section 32(1). Schedule 1, part 2 describes prison offences, which under section 58 a ‘prisoner… must not commit,’ include: • Maiming, injuring or tattooing • Intentionally endangering the health of another person • Possessing or consuming alcohol or a drug, if not authorised • Being drunk or under the influence of an illegal drug • Cursing or swearing. The Corrections Regulations are largely silent on issues relating to the transmission of hepatitis C with the exception of section 8, which provides for the quarterly inspection of prisons by a medical officer who reports on risks ‘to the health of staff or prisoners and detainees.’ Internal regulations include Prison Service Standing Orders (issued by the Director of Prisons) which are based on corrections legislation, and contain state-wide policy and procedural requirements, while local prison guidelines are contained in Standard Operating Procedures.

Reviews There have been significant enquiries into the operation of Tasmanian prisons over several years. Political responses to the sharing of injecting equipment in Tasmanian prisons have been contradictory. The Tasmanian Hansard of the 18 March 1999 notes the then opposition urging the government to implement a needle and syringe program within prisons. After being elected to government, the same members were asked what action had been taken to introduce this program. The Health Minister noted recommendations from the Australian Medical Association for introducing a program and that the government was ‘looking at the ways we could implement at least some of the recommendations.’ The Attorney General was asked in an Estimates Committee on 5 June 2001 about the impact of drug use on the prison system. The Attorney-General acknowledged that used injecting equipment had been found in prisons, and that this constituted a ‘health and safety issue for both prisoners and prison officers.’ This issue was not only related to their possible use as a weapon, but concern was expressed that they ‘would have been multiply used and the opportunity for the spread of hepatitis C is incredible, so it is a health and safety issue.’ There was no follow-up comment or question about this issue.

Report on an Inquiry into Risdon Prison, Ombudsman Tasmania. This report is presented in 2 volumes – the first looking at the Risdon Prison Hospital and Forensic Mental Health Services,82 and the other into the Risdon Prison Complex.83 The reports are characterised by the Ombudsman as the ‘most major investigation’ undertaken by its office. The report findings are broad ranging in their scope and look at fundamental change within the correctional system. The impetus for both investigations was as a result of several deaths in custody over a fourteen month period. Most occurred in the prison hospital, with two deaths occurring in a single twelve-hour shift. The introduction to the reports describes prisoners as ‘a highly volatile, vulnerable and atypical society.’ It notes that a ‘special duty of care [is] owed to a group of people who are deprived of many personal liberties by virtue of incarceration and who have special physical, mental, emotional and social needs, which frequently differ from those of society as a whole.’ The report talks of the need to balance ‘security and containment on the one hand and rehabilitation and restitution of inmates’ self esteem on the other.’ The hospital report highlights mental health issues and inadequate responses to the needs of prisoners within the context of inadequate responses to health issues generally within prisons. Some of the issues that relate to the context of responding to hepatitis C within correctional settings include: • A  t the time of the report, medical staff in the Prison Hospital reported to the Department of Health and Human Services (DHHS), while nursing staff reported to the Department of Justice and Industrial Relations. The report notes the transfer of nursing staff to the DHHS. • A  t the time of the report, mandatory HIV testing was conducted on reception to prison. The report notes four prisoners with HIV over the previous 10 years, all known to be infected at the point of their entry into prison. The Director of Public Health advised that compulsory testing was not consistent with the DHHS approach to communicable disease control. • T  he view of the sexual health educator was that formal procedures and policies were lacking in many areas with no commitment to promoting health • T  he Ombudsman supported that part of the role of the visiting medical officer included public health issues, health promotion and the development of preventative strategies.

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78

While the report strongly supported the idea of ‘the State (having) a special duty of care to persons in custody,’ no recommendations were made specifically addressing this issue. The report noted the findings of the Royal Commission into Aboriginal Deaths in Custody that ‘not only are the persons in custody deprived of their liberty, they are deprived of the ability and the resources to care for themselves.’ An accompanying report (volume 2) focussed on prison administration and looked at issues including security and surveillance provisions; inmate health and safety; drugs; discipline; training and aspects of operational management in the prison. In relation to drug use, the Ombudsman reported on drug testing protocols used over a 7 month period. Of 204 inmates tested, 86 (42%) gave a positive reading with the majority of positive tests showing cannabis use (66), and 10 people showing non-approved opiate use. The report describes drug use within Risdon Prison as ‘an urgent and ongoing problem and stringent procedures must be pursued to counter the problem.’ While harm minimisation interventions are noted, as is the experience of South Australia in adopting this approach, albeit without naming differential penalties for cannabis use, the report supports security based responses. A more comprehensive response to duty of care issues is described in this report with three levels of care noted: 1. ‘Normal’ duty of care where official practices, policies, standards and procedures are developed and adhered to in a competent, professional and reasonable manner 2. A  duty of care owed to the broader community requiring ‘appropriate physical facilities, infrastructure and practices to provide safety and security for the community, and to ensure the effective rehabilitation of prisoners back into the community’ 3. ‘Special’ duty of care, encompassing moral and ethical dimensions, and owed to people deprived of personal liberties by virtue of incarceration with special needs frequently differing from society as a whole.

Strategies The report, Supply, Demand and Harm Reduction Strategies in Australian Prisons developed for the Australian National Council on Drugs84 notes the existence of the Tasmanian Prison Service Drug Strategy 2001, although this report could not be located. Personal communication to the authors of that report from the Prison Service states that a model of differential sanctions in response to cannabis use was being considered by the prisons service. Harm reduction strategies within Tasmanian prisons include education programs, access to methadone and voluntary blood borne viral testing. Peer education programs were noted as having occurred in the past with limited success, and condoms or bleach are unavailable. The Tasmanian Sexually Transmissible Infections and Blood Borne Viruses Action Plan (2007-2008) acknowledges the high prevalence of hepatitis C within correctional settings. The action plan seeks to improve access to education, information and prevention strategies about hepatitis C within a range of settings including custodial settings, and deliver harm reduction education and information in correctional settings. The Review of Alcohol, Tobacco and Other Drug Services in Tasmania, Final Report85 notes an average of five prisoners being managed on a drug substitution program, with ‘as many as 125 prisoners’ being suitable for the program. One recommendation of the report is to develop drug substitution protocols for people moving from prison into the community. The consultation document for future directions for Alcohol, Tobacco and Other Drugs Services Tasmania July 2008 notes ‘treatment in correctional settings… can lead to substantial reductions in the rates of re-incarceration and the associated costs of arrest, prosecution and incarceration.’86 The plan has no proposed initiatives to specifically support this proposal.

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Corrections Victoria 80

• Health services within correctional settings are outsourced through Justice Health under a variety of contractual arrangements • Victoria is one of two Australian jurisdictions with human rights legislation – the Charter of Human Rights and Responsibilities Act 2006 • The Stage 2 report of a Drug Policy Expert Committee the committee – Drugs: Meeting the Challenge (2000) recommended implementing ‘active and appropriate harm-reduction strategies such as needle and syringe services’ within correctional settings No of Prisons (Public)

12

No of Prisons (Private)

2

Prison Population @ June 09

4,350

% Prison Population who are Indigenous

5.4%

Hepatitis C Prevalence

41%

Prison capacity (Dept of Justice figures at June 2009)

4725

The Department of Justice administers prisons through Corrections Victoria, and prison health services through Justice Health. The mission of Corrections Victoria is ‘to deliver a safe and secure corrections system that actively engages offenders and the community to promote positive behaviour change.’ Key responsibilities of Justice Health include: • R  eviewing existing health services provided in the Department of Justice and integrating planning and service delivery • Reviewing existing and potential contract providers, and responsibility for contract management • Planning • Policy and direction for existing and future health services in Justice • Health prevention and promotion activities. Justice Health coordinates health service provision within the Department of Justice including the administration of health within police, courts and Corrections Victoria. This manifestation of the agency replaced a previous structure in which prisoner health was a collaboration between Corrections Victoria and the Prisoner Healthcare Unit of the Department of Human Services. Justice Health states that ‘prisoners in the Victorian prison system are provided with a level of health care in line with appropriate community standards’ and that the agency uses a ‘three-tiered intervention model’ consisting of primary, secondary and tertiary health care in providing health care services to prisoners.87 Justice Health is a business unit of the Department of Justice and reports to a Joint Management Committee consisting of representatives from the stakeholders in the justice sector, including the Department of Health, the Department of Human Services, Justice Health, Corrections Victoria and Victoria Police.

The Office of the Inspector of Custodial Services in Western Australia in their review of prisoner health services described the Victorian correctional health system as ‘among the best funded’ in Australia although its complexity meant that achieving and monitoring standards was troubling.88 This complexity is reflected in four health care providers delivering health care services across Victoria’s prison system which Justice Health describes as: • G  4S, contracted to provide primary health care, outpatient mental health services and state-wide secondary inpatient mental health services (through St Paul’s Psycho-Social Unit) at Port Phillip Prison. G4S is responsible for secondary state-wide inpatient health care services delivered at St John’s at Port Phillip Prison and secondary and tertiary outpatient services from St Vincent’s Hospital • G  EO provides primary health care and mental health services at Fulham Correctional Centre and the Metropolitan Remand Centre • S  t Vincent’s Correctional Health Service provides primary health care at Marngoneet Correctional Centre and the Metropolitan Remand Centre. • P  acific Shores Health Care (a subsidiary of GEO) provides primary health care at the remaining nine public prisons. Victoria has 14 adult correctional centres including two private prisons and two women’s prisons. The Statistical Profile of the Victorian Prison System reports a prisoner population of 4,350 at 30 June 2009, which includes 282 women prisoners.89 Two hundred and twenty-one Indigenous men and 20 women were imprisoned at 30 June 2009, reflecting 5.4% of the adult prison population. Data from Corrections Victoria states that the ‘operational capacity is the total number of places available in which to house prisoners’; the statistical profile notes the total operational capacity is 4,725. Victoria has the lowest imprisonment rates in Australia with the exception of the Australian Capital Territory,90 although Victoria experienced an 11% increase in prisoner numbers between 2003 and 2007. Independent monitoring of the corrections system occurs through the Office of Correctional Services Review which took the role from the Corrections Inspectorate in August 2007. This Department of Justice division seeks to ensure ‘that the corrections system acts in a fair, transparent and accountable manner.’ While reports are not publicly available, a brief synopsis of their activity is included in the Corrections Victoria annual report. Hellard, Crofts and Hocking in 2002 found 55% of male and 66.7% of female prisoners in Victoria were infected with hepatitis C.91 Almost 75% of people who had ever injected drugs reported injecting whilst in prison, and were more likely to share a needle and syringe inside prison. Inmates with hepatitis C were younger, more likely to have injected drugs and to have been injecting for a longer time, and more likely to have injected drugs in prison. Indigenous inmates were identified as being at increased risk of hepatitis C infection. In 2003, Deloitte Consulting undertook a study of inmate health for the Department of Justice. The report describes inmates ‘as an extraordinarily needy, unhealthy, and life-damaged cohort’ who ‘are at the very high risk end of the Victorian health spectrum.’92 The study found a hepatitis C prevalence of 60% among female, and 52% among male inmates, with higher prevalence among older Indigenous men (78%) and young Indigenous women (77%). Seventeen and a half percent of the total number of respondents had injected whilst in prison, with the majority of people reporting that the needle had not been cleaned before use.

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Legislation Justice Health identifies the legislation (primary and subordinate) providing the context in which it works as 82

• Corrections Act 1986 s.47 (1) (f), (g), (h), (c), (b) • Corrections Regulations 2009 • Drugs, Poisons and Controlled Substances Act 1981 • Health Act 1958 • Mental Health Act 1986.

Corrections Act 1986 In relation to the provision of health services to inmates, changes occurred in Victorian legislation with Section 7 of the Act downloaded in 2008 describing the ‘Functions of Secretary’ and notes Nothing in this Act or the regulations is to be construed as conferring or imposing on the Secretary any functions, powers, duties or responsibilities in relation to the administration of hospital, medical, nursing and other health services provided for prisoners or offenders, or in connection with prisons, police jails or locations. This was amended in 2009 to read The Secretary is responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders. These sections allow health services to be outsourced, rather than an expectation or permission to provide direct services. Section 14 of the Act provides a broad definition of officer, by deeming an ‘officer’ to include ‘a member of a prescribed class of persons who works in a prison as a psychiatrist, registered medical practitioner, dentist, nurse or health worker.’ Section 29 provides the context for ‘medical tests and samples,’ where prisoners must ‘submit’ to medical tests to ‘assess a person’s physical and mental health,’ and in section 29A allows for the testing for drug and alcohol use. Section 47 has the right for access to ‘reasonable medical care necessary for the preservation of health.’ The Corrections Regulations 2009 are largely silent on health issues, although under section 50, a prisoner must not ‘take or use alcohol, a drug of addiction or drug of dependence’ or possess ‘an article or substance not issued or authorised by an officer, prescribed by a medical officer, medical practitioner or dentist.’ Victoria is one of two Australian jurisdictions with a charter of human rights. The aim of the Charter of Human Rights and Responsibilities Act 2006 is to protect and promote human rights. In terms of hepatitis C transmission within the correctional setting the following sections may be of relevance: • U  nder section 22, all people who are deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. • Section 26 notes the right for a person not to be tried or punished more than once. To date, the immediate effect of the Charter of Human Rights and responsibilities in the prison context has yet to be tested in the courts.

Internal Regulation Several internal regulatory instruments operate within Victorian correctional services including: • Standards for the Management of Women Prisoners in Victoria • Correctional Management Standards for Men’s Prisons in Victoria • Director’s Instructions • Sentence Management Manual. Two additional regulatory instruments were identified by Justice Health, Justice Health Primary Health Care Standards (2009) and the Justice Health Secondary and Tertiary Health Care Standards (2009) as affecting the Victorian regulatory framework after initial drafting of this report. The standards are not publicly available on the Department of Justice website and were unavailable to the researchers. Both management standards establish minimum requirements for correctional services and detail the broader regulatory framework in which the standards operate including: • L  egislation – the Corrections Act 1986; the Corrections Regulations 1998, and the Victorian Charter of Human Rights and Responsibilities Act 2006. • Standard Guidelines for Corrections in Australia, 2004 • N  ational Principles for Working with Female Prisoners – a copy of this document was not publicly available, and was not mentioned in other jurisdictions • P  rogram and Service specifications – developed for specific programs such as drug treatment program to ensure consistency across the prison system • Commissioner’s Requirements • D  irector’s Instructions and Operating Procedures/Local Operating Procedures developed and implemented within individual prisons. Health and Wellbeing is one of the key themes within the Standards for the Management of Women Prisoners in Victoria, and health is noted several times throughout the document: • R  eception Standards – one ‘output’ in this standard is a health, medical and psychiatric screening assessment by a medical practitioner as soon as possible and no later than 24 hours after reception, with voluntary testing for infectious disease • O  rientation Standards –including occupational health and safety information including infection control, and details of agencies providing health services within prison • T  he section detailing health and wellbeing standards note the ‘complex association between criminogenic and non-criminogenic risk factors’ contributing to offending, wellbeing and rehabilitation which should be ‘taken into consideration in the interpretation of Standards.’ Health and Wellbeing Standards include: • Provision of health services • Drug and alcohol treatment services to ‘assist in reducing licit and illicit drug misuse in prisons’ • Management of prisoners at risk of suicide or self harm • Victim support services • Religious, cultural and spiritual expression.

83

Key themes differ between the men’s and women’s standards. The men’s standards include: 84

• S  ecurity, whose outcomes include a secure working and living environment with drug detection systems which comply with standards detailed in the Victorian Prison Drug Strategy 2002 • Access to an Aboriginal or Torres Strait Islander contact person • T  raining of custodial staff, and the education of prisoners about infectious diseases and prevention strategies. Clinical and Health Services are noted in the men’s standards and include offending behaviour programs and drugs and alcohol treatment services. Outputs for health services are referred to in the ‘Corrections Victoria Health Care Standards’ 2005. Copies of Director’s Instructions were located by the project, although given the significant changes in the administration of health to prisoners, their currency can’t be guaranteed. Directors Instructions relating to hepatitis C include: • D  irector’s Instruction No: 2.15 – Infection Control in Prisons. The outcome of this instruction is to reduce the ‘transmission of infectious disease,’ through ‘an environment that minimises the risk of transmission of infectious disease as far as is possible within the existing policy framework.’ Instructions include guidance for handling sharps; infectious waste disposal; exposure to blood or body fluids (including debriefing with the officer in charge), and conducting searches. The instruction allows access to condoms for prisons with family visit programs. Prison staff will be provided with ‘training in the theoretical background to infectious diseases,’ while prisons will ‘work toward having fully trained and trainee Peers Educators to deliver formal and informal infection control training. Hepatitis C prevention measures are specifically described as ‘universal precautions;’ disposal equipment for all skin penetration procedures, or ‘adequate sterilisation methods when using reusable needles.’ • D  irector’s Instruction No: 1.4 – Contraband. This instruction seeks to provide a ‘secure working and living environment for prisoners, visitors and staff,’ and the control of any article or substance which ‘may threaten the good order or security of the prison.’ The prison general manager is authorised to limit the entry of anything threatening prison security. • D  irectors Instruction No 4.4 – Hygiene. Procedures for this instruction include a health assessment of all prisoners; access to health and medical services, and provision of a basic hygiene kit which includes toothbrush and razor. An environmental health officer is to undertake an annual inspection of the prison and prisoners. The Corrections Victoria Sentence Management Manual provides guides people involved in sentence management ‘to ensure the consistent implementation of the principles enshrined in the Offender Management Framework.’ The manual is described as a ‘living’ document to be updated every six months, and claims to meet the principles of the Human Rights Charter. Its relevance in relation to hepatitis C includes: • W  ithin the sentence management process, nursing and medical staff assess prisoners to determine medical and psychiatric needs and information relevant to the health management of the prisoner. • P  risoners with substance abuse issues are one of the specific prisoner groups identified in the manual with an objective of ensuring that systems aim to reduce the demand for drugs by prisoners whilst in custody, and that they have access to drug programs designed to reduce offending behaviour. The manual notes that prisoners with an ‘Identified drug user’ status are ineligible for accommodation at minimum security locations, and provides for access to drug substitution programs for sentenced prisoners. • Harm minimisation programs are provided at all prisons.

Agreements An agreement between the Department of Justice and Pacific Shores Healthcare from 2002 details contractual obligations for delivering health services within specific Victorian correctional services. The agreement establishes health care services that meet ‘all requirements under Primary Health Care Interim Standards – CORE Prisons State-wide Model for Prisoner Health Services’ and that the contractor ‘will provide quality, contemporary health care services that meet a community standard and are tailored to the special healthcare needs of prisoners.’ Health services in the agreement are framed as primary, secondary and tertiary, with hepatitis C prevention issues described within infection control. Infection control procedures identify prisoners at high risk of infectious disease with high risk prisoners ‘routinely’ offered testing. The agreement notes the need for pre and post test information and counselling, although no mention is made of national hepatitis C testing policies.

Reviews An Independent Investigation into the Management and Operations of Victoria’s Private Prisons report in October 200093 resulted from the State Coroner’s findings into five deaths at Port Phillip Prison, with Minister for Corrections requesting an independent investigation into the management and operation of Victoria’s (then) three private prisons. The report found a fragmented prison health service system with no single point of accountability or clinical driver for health care provision. The report recommended a single health service provider and that health services for inmates remain the responsibility of the Department of Justice. The report noted private prisons complied with the Victorian Prisons Drug Strategy, and several private prison inmates reported the drug treatment programs lacked credible information. The authors were ‘surprised’ at the lack of Medicare access for prisoners which was described as unfair and not conducive for developing correctional health care systems, particularly given the disadvantaged health status of prisoners. The Ombudsman Victoria and Office of Police Integrity reported in July 2006 on Conditions for Persons in Custody following an unsatisfactory response to a previous investigation in 2002, and continued prisoner complaints.94 The Ombudsman notes the ‘clear’ duty of care to prisoners by Corrections Victoria, and the ‘significant deficiencies’ in prisoner health relate to ‘insufficient resources, unsatisfactory contractual arrangements with health providers and prison regulations which create obstacles to the provision of effective health care.’ The report acknowledged the need for effective hepatitis C prevention interventions including a ‘needle exchange or disinfection swabs or by providing bleach’; drug testing and the provision of condoms. The Victorian Ombudsman reported in June 2008 on an Investigation into Contraband Entering a Prison and Related Issues95 given complaints to the Ombudsman that prison officers were not adequately recording and disposing seized contraband. The Ombudsman noted complaints related to ‘poor administrative practices’ directly affecting the safety and security of prison staff, prisoners and the broader community by staff not complying with instructions. Information for the report came from a Healthy Prison Review undertaken by the Corrections Inspectorate of the Dame Phyllis Frost Centre in 2007 which noted a prisoner survey where almost 20% of prisoners reported using drugs in prison, with 44% saying it was easy to get drugs in prison. Staff were asked whether the Victorian Prison Drug Strategy had assisted in reducing drug taking, to which 49% disagreed. Urine testing is noted within the Victorian Prison Drug Strategy as a prison harm minimisation strategy. The investigation identified concerns about this testing as prisoners knew when they were to be tested – allowing prisoners to time their drug use to minimise the chance of a positive test.

85

86

A Drug Policy Expert Committee was appointed in 1999 to provide the Victorian Government with advice on drug policy. The committee’s report notes the committee’s establishment ‘reflected Government’s awareness of the seriousness of the deteriorating situation surrounding increasing use of illegal drugs.’ The Stage 2 report of the committee – Drugs: Meeting the Challenge (2000) supports the development of a prison drug strategy,96 in particular the availability of drug treatment programs; reduction of drug use by prisoners, and incorporating ‘active and appropriate harm-reduction strategies such as needle and syringe services.’ In recommending this, the expert committee noted that ‘as far as practicable, incarcerated people have a right to the same services for health protection and treatment as those in the general community. This is consistent with the United Nations Standard Minimum Rules for the Treatment of Prisoners.’ While impressed with activity being undertaken and proposed by Corrections since the original report of the Premier’s Drug Advisory Council in 1996, the expert committee noted problems including the: • Impact of ‘serial relocation’ within the prison system on prisoners • Breadth of drug treatment • Impact of consistent sanctions on the use of drugs by prisoners • Risk of infectious disease transmission through sharing injecting equipment • The lack of incentives for prisoner to not use drugs. The report notes that the committee is ‘encouraged that not just programs but the evaluation of programs and individual outcomes are now being proposed,’ and supported including the following principles to underpin a corrections drug strategy: • T  reatment and harm minimisation practices should be of the same quality on either side of the prison wall • T  ransition from prison to the community is a particularly critical point in a drug-using offender’s life and should be prepared for and phased in appropriately • T  here must be evaluation of the long-term impacts of prison drug treatment for offenders post-release.

Strategies The Victorian Hepatitis C Strategy 2002–2004 and Addendum 2005–2009 identifies correctional settings as a ‘current and emerging’ challenge. The strategy identifies the increased potential for hepatitis C transmission occurring within correctional settings given ‘structural and logistical barriers, pre-existing levels of infection and high levels of risk behaviours.’ The strategy recognises the development of the Victorian Prison Drug Strategy and notes ‘there is considerable scope in Victoria to improve the overall health of people in correctional settings.’ Several activities are described for correctional settings including: • Improved hepatitis C surveillance to ‘provide valuable accurate data for prevalence, incident cases and transmission rates’ • Diversion schemes for drug offenders to further reduce the number of drug-related incarcerations • Increased access to drug treatment services during and after prison • Increased access to hepatitis C treatment during incarceration and the further development of hepatitis C training and education initiatives in correctional settings to improve the health outcomes of this group.

The Corrections Victoria, Strategic Priorities 2008-09 details current ‘challenges’ facing the organisation, and how these challenges will be addressed. Strategic themes are risk management; human rights; regionalisation; sustainability; ‘one justice’ and community engagement. The priorities for 2008-09 for the department, with the exception of strategies to ‘offset’ the projected growth in prisoner numbers, have little direct impact on hepatitis C transmission. According to the Victorian Prison Drug Strategy 2002, ‘alcohol and other drugs… is one of the biggest issues facing Victoria’s criminal justice system.’ The strategy identifies that the relationship between the prison environment and the creation of public health risks presents challenges for prison management. Harm minimisation is described in the strategy as minimising ‘the health, social, legal and economic harm caused by drugs,’ and differentiates these strategies from ‘traditional zero tolerance’ approaches aiming ‘to reduce the level of drug use and create a drug-free prison environment through detection, deterrence and law enforcement.’ The mission of the strategy is to prevent drugs entering Victoria’s prisons and to minimise the harm caused by drugs to prison staff, prisoners and society. Four goals are described: • S  upply control – detecting prisoners using drugs; apprehending people seeking to bring drugs into prisons, and intercepting drugs and ‘related equipment’ • D  etection and deterrence – detecting and deterring drug use and trafficking by identifying prisoners who traffic drugs; identifying and managing prisoners who use drugs; deterring prisoners from using drugs, and incentives for prisoners to remain drug free. The detection and deterrence goal also provides differential management for cannabis given the reduced opportunity for overdose with cannabis and lessening of the risk of blood borne virus transmission. • T  reatment – provides for effective treatment opportunities and harm reduction initiatives through decreasing demand; ‘targeted programs to challenge their drug use’; treatment of prisoners with acute health needs and linking with post release drug services • H  ealth and safety – providing information about the ‘risks of drug and alcohol abuse and the harm that can be caused by drugs’; motivating behaviour change; education and support of prisoners to achieve the ‘best quality of life… and prevent transmitting infection to others,’ and trained prison staff. ‘Prison drug action plans’ are used to implement the strategy, and are described as a ‘vital development in improving the overall strategic response to drug use in Victoria’s prisons.’ The Victorian Prison Opioid Substitution Therapy Clinical and Operational Policy and Procedures (2003) provide the strategic context for expanding the drug substitution program in correctional settings. The introduction to the policy and procedures note the program aims as reducing • Opioid drug use within prisons and upon a prisoner’s release to the community • Blood borne viral transmission among prisoners • Deaths associated with illicit opioid use in prison, and especially upon release to the community • Drug-related criminal activity after release from prison.

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Department of Corrective Services, Western Australia 88

• The highest proportional increase in prisoner numbers occurred in Western Australia, with an increase of 17% occurring between 2008 and 2009 • Health services within correctional settings are provided by a section of the Department of Corrective Services • There have been significant reviews of the Western Australian prison system over the past 20 years, resulting in substantial changes to the administration of the system • Western Australia has the only agency providing an independent external review of correctional services in Australia No of Prisons (Public)

13

No of Prisons (Private) Prison Population @ Feb 10 % Prison Population who are Indigenous

1 4879 40.5%

Hepatitis C Prevalence

21%

Prison capacity

3433

The Western Australian Government Department of Corrective Services aims to ‘provide safe, secure and decent corrective services which contribute to community safety and reduced offender involvement in the justice system.’ Health services within Western Australian prisons are currently (2010) provided by the Department of Corrective Services. Over the past few years much debate has occurred in determining whether the Department of Health or the Department of Corrective Services is the most appropriate agency to deliver health services to prisoners. This issue is discussed later in this section. Western Australia has 14 adult correctional centres, including one privately operated prison. Four correctional centres (Broome, Roebourne, Eastern Goldfields and Greenough) are characterised by the Western Australian Inspectorate of Custodial Services as ‘Aboriginal Prisons,’97 where more than 75% of the prisoners are Indigenous. The Australian Bureau of Statistics98 notes Indigenous people being 21 times more likely to be in prison than non-Indigenous people in Western Australia and which is the highest age standardised ratio of Indigenous to non-Indigenous rates of imprisonment in Australia. The Department of Corrections Weekly Offender Statistics at 11 December 2008 report an adult prisoner population of 3,946 people incarcerated, with 42% of these prisoners being Aboriginal, and 7.5% being female.99 The Productivity Commission, Report on Government Services 2008,100 notes Western Australia having the second highest rate in real expenditure on corrective services per person (behind the Northern Territory); the second highest imprisonment rates (behind the Northern Territory), and the highest per capita Indigenous imprisonment rates. The Australian National Council on Drugs101 cite a report of hepatitis C prevalence among Western Australian prison inmates being lower than the national average with around 23% of male and 46% of female prisoners infected. The cited report, Hepatitis C: A Study of Prevalence in WA Prisons102 notes significant differences in prevalence rates between prisons. No hepatitis C infections were found in Broome or Roebourne prisons, both ‘Aboriginal Prisons,’ while 36% of the prison population in Acacia and 35% in Hakea had hepatitis C – two of the three largest prisons in Western Australia. There was a 59% hepatitis C prevalence among women in the main women’s prison.

Data from the Nation Prison Entrants’ Bloodborne Virus and Risk Behaviour Survey shows similar breakdowns of hepatitis C prevalence within Western Australian Prisons in the 2004 and 2007 surveys, with 20% (2004) and 21% (2007) of prisoners being infected.103 Small numbers of women participated in the survey with around a third being infected with hepatitis C. These reflect findings in the Profile of Women in Prison 2008, where women inmates self reported blood borne virus infection.104 The high proportion of Indigenous prisoners within a setting of a high prevalence of hepatitis C was one issue identified in the Community Drug Summit Report in 2001.105 The report noted the concerns of unsafe injecting practices ‘particularly in prisons where indigenous people are disproportionately represented and at greater risk of contracting blood borne viruses’ and support for harm reduction interventions in prisons.

Legislation Prison Act 1981 The central legislation affecting the operation of prisons in Western Australia is the Prisons Act 1981. This legislation provides for ‘the establishment, management, control, and security of prisons, the custody and welfare of prisoners.’ Points of relevance within this legislation to hepatitis C prevention include: • S  ection 12(b) ‘Every officer… has a responsibility to… report to the superintendent every matter coming to his notice which may jeopardise the security of the prison or the welfare or safe custody of prisoners’ • S  ection 35 (1) provides permission for the chief executive officer ‘with the approval of the Minister, make rules for the management, control and security of prisons’ • S  ection 36 allows for each prison superintendent who is ‘responsible to the chief executive officer for the good government, good order, and security of that prison.’ This superintendent is permitted under Section 37 to issue standard orders within their prison • Possessing or using drugs is an ‘aggravated’ prison offence under Section 70 • T  he chief executive officer is directed to implement services and programmes to promote ‘the health and wellbeing of prisoners’ under Section 95 of the act, and is responsible for providing medical care under Section 95A • S  ection 95B details the duties of medical officers and Clause D requires a medical officer to provide medical reports if requested to the chief executive officer • S  ection 95C allows for the Executive Director, Public Health to inspect the ‘health and hygiene standards and conditions at every prison.’ The Prison Regulations 1982 addresses issues including: • Employment, responsibilities, discipline and discharge of prison officers • A  lcohol and drug related aggravated prison offences focussing on the testing of prisoners who are suspected of committing an ‘aggravated drug offence’ • Prisoner management – clothing, property, visits • Prison offences.

89

Internal Regulation 90

Three types of policy are publicly available on the Department of Correctional Services website – Director General’s Rules, Policy Directives and Operational Instructions. The department describes these as forming the ‘majority of the overall system of prisons and prisoner management that is derived from the Prisons Act 1981’ and are to be reviewed on an annual basis. Director General’s Rules are made by department head with approval from the Minister, and largely cover prisoner and prison officer conduct. Policy Directives are issued by the department head without Ministerial approval, and address procedural and administrative matters and welfare issues. The Regulations project identified and collated other forms of policy affecting the prevention of hepatitis C transmission in prisons including Health Services Policy, Protocols and Procedures, and Standing Orders. These were not publicly available, and their currency cannot be guaranteed. Director General’s Rules 09 allows for condoms and dental dams to be provided in prisons ‘on such terms and at such time as the Superintendent considered appropriate.’ Policy Directive 12 refers to Men’s and Women’s Preventative health programmes. The directive notes that the Department of Corrective Services is responsible for access to appropriate health services and encourages prisoners to improve their health status and prevent illness. The directive describes health promotion resources for prisoners include ‘information, education, promotion, individual counselling, screening and referral.’ Policy Directive 19 addresses personal hygiene and details that ‘prisoners shall be able to obtain and replace’ personal items including toothbrush and shaving implements. None of the Operational Instructions appear to have direct relevance to preventing hepatitis C transmission in correctional settings, although appendices to the instructions describe ‘Standard of Behaviour Expected of Prisoners’ which includes an expectation that prisoners are expected not to use drugs or alcohol. Health services within Western Australian prisons are provided by the Health Services Directorate of the Department of Corrective Services who aim to maintain the physical and psychological well-being of prisoners by providing a comprehensive range of health care services, at a comparable standard to that available to the general community. The directorate notes that the department is seeking accreditation with the Australian Council on Healthcare Standards (ACHS) Evaluation and Quality improvement program. The Health Services Directorate notes on its website that ‘hepatitis C is currently causing great concern in prisons nationally and internationally, given the high number of offenders who have engaged in injecting drug use,’ and details a series of activities in ‘controlling the spread of blood borne viruses in prisons.’ These activities include: • A  n educational program for offenders, ‘Keeping Safe.’ This compulsory program forms part of the prison orientation program, and is made available for all offenders including those from culturally and linguistically diverse backgrounds. The program ‘covers all issues associated with blood borne viruses and high-risk behaviours particularly associated with prison life’ • A  vailability and ‘encouragement’ of prisoners to be tested for blood borne viruses, particularly hepatitis B and hepatitis C, and to have hepatitis B vaccinations • The availability of condoms and dental dams, free of charge through vending machines • P  rovision of ‘exit kits,’ containing a condom/lube and public health information, issued to prisoners upon release • Naltrexone exit program (available at four facilities).

Three ‘Health Services Policy, Protocols and Procedures’ describe responses to hepatitis C related issues. • Testing for Blood Borne Viruses and Notification of Results (9.2)

– Blood and body fluids of all persons are considered infectious



– V  oluntary testing for HIV/AIDS, hepatitis B and hepatitis C ‘is encouraged’ with pre and post-test counselling provided



> T  esting to occur within 14-21 days of reception to prison to establish baseline, and following ‘risk exposure/behaviour during imprisonment’



> Copy of ‘Health in Prison’ pamphlet is provided (unable to locate)



> Medical Officer should provide positive results within 24 hours of being given a diagnosis

• Sharps Disposal Protocol (9.1.2)

– All blood and body fluids should be considered potentially infectious



– Availability of sharp containers



– Filled sharps containers should be ‘stored in a secure area’

• Hepatitis C (9.5)

– A  ll prisoners offered hepatitis C testing at admission; the Medical Officer will note if the offer is rejected



– H  igh risk categories for hepatitis C is ‘IV drug users; Homosexual, Bi-Sexual; Prostitutes, male or female; heavily tattooed people; intellectually handicapped, Aboriginal or Asian’



– People testing positive to hepatitis C



> Will get a liver function test and PCR



> Further counselling



> Hepatitis A and B vaccination.

During the initial phase of this project, Standing Orders from the then Department of Justice were identified as another policy response affecting hepatitis C and its transmission with prisons. There has been a significant restructure of the department, with the Department of Corrective Services commencing operation in February 2006, and the currency of the Standing Orders is unclear. Department of Justice Standing Orders contain generic information which can be supplemented by each prison. Two standing orders are noted here • Risk Management Infectious Diseases (HIV) (Standing Order E2)

– H  IV status can be disclosed to the prisoner, Health Services staff, the Superintendent, the Director General and to an authorised person (defined by the prisoner)



– All prisoners will be provided with HIV prevention information and encouraged to be tested



– P  risoners with HIV will have the same access to work, recreation and other activities ‘consistent with the general community standard’



– R  estrictive regimes will be implemented based on prisoner behaviour; these regimes will be documented

91

• Provision of condoms and dental dams (Standing Order B17) 92



– C  ondoms, lubricant and instructions available for male prisoners over the age of 21 years through vending machines



– Condoms and dental dams are available for women ‘for health reasons’ – no age limit stated



– It is an offence to fill a condom with ‘water, any other fluids, body fluids or solids.’

Acacia Prison is the one privately operating prison in Western Australia. The prison was initially contracted to Australian Integration Management Services Corporation (AIMS Corp) from May 2001 for five years. The Annual Report 2004/05 required under the Acacia Prison Services Agreement notes the re-tendering of the private prison contract given ‘senior management failing to demonstrate clear leadership,’ and that AIMS ‘has not delivered the quality of service required by the Department.’106 It is also reported that in random drugs testing of inmates between June 04 and May 05, positive results ranged from 2.86% to 13.89%. The current contractor, Serco Australia, began a five-year contract in May 2006. The Department of Corrective Services website provides copies of the contractual obligations for the operation of the prison, including • Acacia Prison Design & Construction Contract • Acacia Prison Maintenance Agreement • Acacia Prison Services Agreement • Acacia Prison Services Agreement Schedules & Annexures. Schedule 4 of the Acacia Prison Services Agreement details prison contractual obligations including health service provision. Sections of the contract relating to hepatitis C prevention include that the contractor • Provide a health care service commensurate to that available in the community • P  rovide ‘illness prevention and health promotion’ programs in accordance with departmental requirements • Provide a range of policies and procedural protocols in accordance departmental requirements • C  omply with Policy Directives including Policy Directive 12 (Men’s and Women’s Preventative Health Programmes) and all other legislative requirements • Undertake a health review within two hours of admission to the Prison • Identify changes in physical and mental state, and provide voluntary testing for HIV, hepatitis B, and hepatitis C • E  nsure that all prisoners receive a minimum of two hours formal health education regarding blood borne communicable disease and ‘risks from IV drug use and unsafe sex’ • Manage, counsel and refer ‘infectious or potentially infectious Prisoners’ • E  nsure that prisoners maintain a reasonable standard of hygiene including providing hair combs, toothbrush, shavers and other personal hygiene implements.

Section 2.20 of Schedule 4 of the contract relates to the ‘management of illicit substances’ including testing procedures. The contract characterises ‘drugs and drug use as a pernicious influence’ in prisons and states the need for ‘a zero tolerance approach to illicit drug use and all associated behaviours (section 1.11 jv). In spite of the contradiction between implementing a need for a ‘zero tolerance approach,’ the contractor is to acknowledge ‘the content of the May 2003 Justice Drug Plan and its strategies including those of reducing supply, reducing demand and reducing harm,’ where there is no mention of ‘zero tolerance.’

Case Law The Western Australian Industrial Relations Commission resolved a dispute between the Western Australian Prison Officers’ Union of Workers and the Ministry of Justice (MOJ) in 1996 relating to blood borne disease management within prisons. The issue was described by the commission as The right of employees in prison operations to be advised of the identification of persons who are known to carry blood borne communicable diseases, taking into account the responsibilities imposed upon prison officers under the Prison’s Act to handle such information. The Applicant seeks the following relief: 1. An order that the Ministry of Justice be required to provide information identifying the diagnostic status of any prisoner with blood borne communicable disease to Unit Managers employed in Western Australian prisons 2. Further, an order that Unit Managers be empowered to authorise the disclosure of information to Prison Officers within the management team and subject to the requirement that the information is given solely for the purpose for providing for the welfare of the prisoner or the management, control and security of the prison in which the prisoner is being held 3. Such other orders or relief as the Commission deems appropriate. Some issues arising in the case and described in the Reasons for Decision are: • T  he then Prisons Department established an AIDS Standing Committee in 1985 to address the management of prisoners with HIV. This committee developed Director General’s Rule 3Q, Prisoner Infectious Disease Management Procedures whose core element was that prisoners with HIV were to be supervised by direct line of sight, and segregated at Casuarina Prison • T  he Commission noted that Western Australian prisons were governed ‘in the main by the Prisons Act 1981 and Regulations,’ and through the existence of Director General’s Rules. The commission were unclear of the authority of these rules, but that they were approved by the relevant Minister rather than Parliament • In 1994 the Equal Opportunity Commission (EOC) of Western Australia supported complaints from prisoners with HIV against being segregated. As a result, Equal Opportunity (Infectious Diseases) Regulations 1994 were developed to provide time for the department to develop responses. After further complaints, the Human Rights and Equal Opportunity Commission (Cth) found the department in breach of the Disability Discrimination Act • D  irector General’s Rule 3Q was amended in 1994 to include training packages for prisoners and prison officers • D  irector General’s Rule 3Y was drafted to replace 3Q. The draft was presented to a committee which included the Director of Prisons Operations, Acting Executive Director, Director of Health Services and union representatives. Prison operations representatives approved Rule 3Y, while the Director of Health Services stated they were ‘not prepared to endorse this in its present form. I have prepared an alternative draft instead’

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• A  new Director General of Prisons was appointed who was an ex-medical practitioner. The draft from the Director of Health Services was presented to the new Director General and approved, thereby raising this issue before the commission • T  he commission noted Occupational Health and Workplace Safety legislation and its regulations, non statutory codes of practice and guidance notes. One of the codes of practice relates to ‘Hepatitis B and HIV/AIDS in the Workplace’ and indentifies prison officers as being at ‘potential risk’ of blood borne virus infection, and the principle of standard precautions • A  new code of practice was being developed which provided for prison officers to be included in the ‘confidentiality net’ whereby providing permission to disclose blood borne viral status. Witnesses to the Commission noted: • T  here was no requirement to know who is infected apart from in circumstances where there has been a known incident of exposure • R  evealing the status of the prisoner could lead to discrimination, denial of access to facilities, and freedom of movement • K  nowledge of the precise medical status of the prisoner was not necessary, but that prison officers with responsibility for prisoner management needed to know if a prisoner had a blood borne communicable disease • T  he union recognised the ethical obligations of medical staff specified in protocols issued by bodies such as the Australian Medical Association in its policy on AIDS published in June 1991 • P  rison officers are advised of prisoner’s medical conditions such as heart problems, diabetes, epilepsy, hepatitis B and C and mental disorders • Prisoner’s medical conditions were noted on muster boards ‘to enhance their management’ • P  rison officers have a duty of care to prisoners and other prison officers, and prison authorities are obliged to provide a safe working environment • U  nless prison officers are properly educated and understand standard precautions they will misconceive the risks and will not act appropriately when exposed to blood or bodily fluids from a prisoner. The commission found a ‘regrettable’ breach in law in segregating prisoners with HIV, and concluded The Ministry of Justice should provide information identifying the diagnostic status of any prisoner with a blood borne communicable disease to Unit Managers. Unit Managers are authorised to disclose the information to prison officers within the unit subject to the information being given solely for providing for prisoner welfare or management control and security of the prison in which the prisoner is being held.

Strategies Several state-based strategic frameworks provide for the implementation of hepatitis C prevention initiatives within the correctional environment. The Western Australian Hepatitis C Action Plan 2006-2008 identifies ‘people in custodial settings’ as one of three ‘Priority Populations at Risk of Hepatitis C.’ As a priority group, the action plan focuses ‘on reducing transmission and improving treatment, care and support.’ The action plan notes the prison environment providing opportunities for hepatitis C risk behaviour and that incarceration is an independent risk factor for hepatitis C. The plan cites a study by Gray finding that 58% of the Aboriginal injecting drug users they interviewed had been in prison, with 23% indicating that they had injected drugs and shared needles and syringes while in prison. The Action Plan seeks ‘to reduce barriers to accessing services to prevent hepatitis C transmission among people in custodial settings.’ It promotes implementing a long term plan for access to prevention services for people in custodial settings based on the (then draft) National Standards for the Prevention, Management and Care of Hepatitis C in Prisons, and to ‘provide hepatitis C education to all prisoners on entry and exit.’ While the Justice Drug Plan 2003 doesn’t explicitly state an aim or objective, it notes the ‘challenge… to develop a comprehensive and effective approach to reducing drug use’ by adult offenders. Key strategies in implementing the plan include: • R  educing supply of drugs within custodial system, including increasing the use of drug detection dogs, prisoner drug testing and diversion of offenders from custody • R  educing demand for drugs by offenders through increasing access to pharmacotherapy programs, increasing blood borne virus testing and expanding drug treatment programs • R  educing the harms associated with drug use including providing condoms and dental dams, assessing bleach availability and a compulsory education campaign for inmates seeking to reduce the impact of hepatitis C. The strategy notes the ‘government strongly supports the introduction of practical harm reduction measures – with the exception of providing needles and syringes – and a number of initiatives are being evaluated.’ The Drug and Alcohol Action Plan 2005-2009 describes the Department of Corrective Services offering a ‘controlled environment in which many offenders can make the first step in reducing drug use.’ The plan recognises alcohol and other drugs related problems treated as a social and health issues, and identifies harm reduction strategies being education for prisoners about blood borne viruses and access to the vaccination program. The plan identifies ‘Health Services will continue to provide health care to offenders in custody commensurate with those provided in the community.’ The Drug and Alcohol Agency Action Plan 2010-2014 includes five strategies, one being a ‘focus on prevention.’ Interventions described under this section include the delivery of ‘Health in Prison, Health Outta Prison’ – a mandatory education program provided to prisoners within two weeks of their incarceration, and within three months of their earliest release data. Other programs include overdose prevention programs, condoms and dental dams in all prisons, and training for all entry level staff.

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The Western Australian correctional system has undergone major reforms over the past few years with three major external reviews of the correctional system. 1. T  he major review fundamentally affecting correctional operations was the Inquiry into the Management of Offenders in Custody and in the Community (Dennis Mahoney 2005), also known as the Mahoney report 2. T  he Western Australian Ombudsman’s office also produced a report in 2000 investigating an increasing number of deaths in custody and looked at health services within correctional settings 3. T  he third reviewer is the Office of the Inspector of Custodial Services. Western Australia is the only jurisdiction with an independent external review of the correctional system. The inspectorate commenced operations in 2000 ‘to bring independent external scrutiny to the standards and operational practices relating to custodial services within the state.’

Mahoney Report – Inquiry into the Management of Offenders in Custody and in the Community. The 505 page Mahoney report resulted from an escape of two prisoners, an assault, and a murder occurring while the murderer was on parole. The investigation sought to identify ‘deficiencies in the system,’ and examined the administration of the prison system in Western Australia. Broad action arising from the report with more relevance to the prevention of hepatitis C transmission included: • R  esponsibility for prisons to move from the Department of Justice, described as a ‘mega department,’ to a specific Department of Corrections • Superintendents responsible for administrative control of individual prisons • A  ‘Corrections Act’ that addresses matters relevant to the new department, and of a simplified and consistent policy and procedures framework across the organisation reflecting expectations of officers • T  he Corrections Act should require the department to specifically contemplate the unique cultural needs of Indigenous offenders in the development, delivery and evaluation of policies, programs and services • C  oncern was expressed in the report of the number of instructions prison officers needed to comply with – ‘Acts of Parliament, regulations made under Acts of Parliament, Director General Rules, Policy Directives, Operational Instructions, Superintendent’s Circulars, Standing Orders, Local Orders, Unit Orders’ • O  ne chapter of the report focuses on managing ‘drug abuse,’ and states that ‘drugs in prison are a breach of the law and should not be tolerated,’ and that the Department should develop a comprehensive drug policy and procedures manual to address inconsistencies in testing and disciplinary procedures and establish a Corrections Drug Strategy Unit. The report notes that ‘many officer’s… are inclined to adopt a zero tolerance approach to drug use’ • T  he corrections system should focus on minimum security prisons, reducing re-offending and the ‘gross over-representation of Aboriginal prisoners’ • The report notes the disproportionate levels of hepatitis C among prisoners. No mention of needle and syringe programs is made in the report which supports current ‘harm reduction’ strategies.

The Mahoney report notes that as a result of a Justice Drug Strategy roundtable, the department developed a range of strategies including introducing ‘harm reduction measure to reduce the prevalence of blood-borne communicable disease’ (no details provided about this). The report identified that • T  he Manager of Prison Drug Strategy believes that five percent of prisoners should be drug tested each month • Urine testing is resource intensive and saliva testing is being done • A  ccess to methadone started in Sept 2003. In 2004/05, 418 prisoners were on the program with an evaluation finding the program was successful although difficulties were noted regarding the speed with which the program was implemented.

Ombudsman Western Australia The Report on an Investigation into Deaths in Prisons resulted from an increasing number of prison deaths in 1997, which looked like it would continue into 1998. The report notes that in 1997, 12 people died in the Western Australian prisons – the highest number for 18 years. In the first five weeks of 1998 a further four deaths occurred, with 11 deaths occurring before the end of 1998, eight deaths in 1999 and 10 deaths in the first six months of 2000. The majority of submissions to the inquiry related to the ‘standard and adequacy of prison health services’ and the report made significant recommendations including the development of a new and independent public health system, uncoupled from the Ministry of Justice. It was proposed that this system should be funded to enable it to plan for and provide a health service within prisons equivalent ‘for all practicable purposes’ to health services in the community. The report noted Prisoner health and welfare is not simply a problem or issue for the providers of health and other ‘support’ services in prisons; it is fundamental to what makes a ‘good’ prison. The report identified an ‘entrenched machismo culture’ within individual prisons with superintendents running their prisons as they see fit, and ignoring directives issued by the Director General of the Ministry of Justice. This was seen as increasing ‘hopelessness on the part of prisoners’ which led to self harm including suicide. Factors limiting providing an effective health service were insufficient resources, low priority of health services, and a lack of forward planning capacity. In other points relevant to the transmission of hepatitis C within correctional settings, the report notes: • A  ll health care, whether in the community or in an institution such as a prison, is based on standards and universally accepted ethical principles • U  ntil 1995 health services fell within the control of individual prison superintendents for the purposes of funding and reporting. This was described as ‘untenable’ and the Health Services Directorate was established within the Offender Management Division • T  he report notes the ‘false economy’ of not resourcing a structured programme of health education and preventative measures • W  hile the Keeping Safe program was funded, there was little or no progress in introducing other education initiatives • L  egislative amendments to the Prison Act shift the responsibility of medical care and treatment from Health Services to the Director General which affects the independence of the provision of health services • W  ithin the prison environment, security and operational issues take precedence over health services, and that ‘nothing less than an equal partnership will result in a better prison health service’

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• In response to a draft of the Ombudsman’s report, the Ministry of Justice felt that outsourcing health services ‘is not helpful to interactions between prisoner, prison officers and health services personnel’ • T  he ministry complies ‘in theory’ with international standards and there is ‘non-compliance with either the spirit of the standards or recommendations’ and a lack of resources available for the implementation of the standard • T  he report recognised that injecting drug use in prisons occurs and that 10% of inmates initiate injecting while in prison with an ‘inevitable outcome’ being an increased risk of transmission of blood-borne diseases • T  he report notes the position statement from the Australian Medical Association on prison health services in their support of needle and syringe exchange programs, although does not specifically recommend this.

Office of the Inspector of Custodial Services The Office of the Inspector of Custodial Services inspects each prison, detention centre, court custody centre and prescribed lock up in Western Australia at least once every three years. Inspections are announced, unannounced, full inspections or ‘light-touch inspections’ as decided by the Inspector. The inspectorate has produced 53 reports (as at August 2008), including one Thematic Review of Offender Health Services in 2006. The Thematic Review of Offender Health Services was commenced in 2004,107 with a draft report produced and disseminated in 2005. The draft report sought responses to a proposal to transfer responsibility for the delivery of health services from the Department of Corrections to the Department of Health. The initial response from the Department of Health stated that ‘it would be difficult… to support the proposed transfer,’ while the Department of Corrective Services moved from initially opposing the proposal to supporting it. The lack of support from the Department of Health was framed in terms of the current demands on the health system; the need for specialised services for prisoners, and that the health system is largely hospital based. The review notes the core recommendation of the delivery of health services to prisoners being provided by the Department of Health was strongly supported by organisations with a stronger relationship with individual inmates, and less strongly by bureaucratic organisations. Hepatitis C prevention is not specifically addressed in the thematic review of health services, although note is made of supply, demand and harm reduction strategies including the challenge of introducing methadone into the prison system. Other key points from the Thematic Review of Offender Health Services include: • T  he lack of access of prisoners to Medicare and the Pharmaceutical Benefits Scheme is ‘inequitable and defies any logic’ • D  eficiencies in prisoner health services included ‘dental services, mental healthcare, management of chronic illnesses, the control of blood-borne viruses and the availability of culturally appropriate health services for Aboriginal prisoners’ • P  roviding a community standard of health care for prisoners is not sufficient for prisoners, and that a ‘need-based’ service is required • Widespread agreement of an ‘overwhelming need’ to improve prisoner health • R  eframing the Department of Corrective Services as the largest Aboriginal Medical Service in Western Australia, even though it has few Aboriginal staff.

The inspectorate developed a series of ‘Digest of Findings’ of issues arising in individual prison reviews that occurred between 2000 and 2006.108 The findings use the Revised Standard Guidelines for Corrections in Australia as a framework. Key points in responses to illicit drugs and access to health services include: • P  rison drug trafficking has repercussions through overdoses, intimidation and violence around drug debts. The indications in WA is that most drug trafficking is for personal use and testing regimes mostly detect cannabis • T  he use of cannabis is reluctantly tolerated at Broome while the prison adopts a zero tolerance policy to alcohol and other drug use. The high level of cannabis use does not translate into high levels of harm amongst prisoners • F  orty-eight per cent of prisoners from Broome whose files were audited and who had been screened were infected with hepatitis C. This contradicts findings of a previous report of no hepatitis C infection within Broome prison • T  he management of prisoners with hepatitis C should include anti-viral treatments, low fat diets, dental care, exercise, and harm reduction strategies relating to drug use • F  orty-eight percent of prisoners were on prescribed medication at Casuarina Prison where there were limited incentives and privileges for prisoners who did not use alcohol or other illicit substances. No health promotion programs operated within the prison • Greenough and Roebourne prisons did not have a written alcohol and other drugs strategy • Wooroloo  Prison Farm – for prisoners who are detected as having used drugs, the response from the prison varies according to the type of drug and/or frequency of use. For drugs other than cannabis (including alcohol), there is zero tolerance and an automatic transfer to a higher security prison • G  enerally, custodial issues predominate over health issues and the prisoner is almost always a prisoner first and a patient second. Other than for blood borne diseases, there is inadequate preventative health education in prison, despite prisoners having some of the worst health problems in the community • A  lbany Prison has a difficult health profile including an aged population with increased cardiovascular risk factors and a high ratio of prisoners with hepatitis C, with ‘a need for the prison to implement health promotion strategies’ • T  he contract between the Department of Justice and Acacia prison requires at least two hours of formal health education for prisoners within a month of being received. This was not occurring nor was there adequate education on matters such as blood borne diseases. The inspectorate noted that ‘syringes were readily, if illegally available in prisons. Prisoners needed access to an easy means of sterilising syringes and tattoo equipment to stem the spread of blood-borne viruses.’ While much has been written from the Office of the Inspector of Custodial Services about health, and hepatitis C is one of the key issues noted in the health related reports, the focus is on the clinical management of hepatitis C infection rather than prevention. The Office of the Inspector of Custodial Services produced Inspection Standards for Aboriginal Prisoners (2008).109 The standards codify findings and add to, and further develop, the Code of Inspection Standards for Adult Custodial Services being used by the inspectorate. While there is nothing specific to hepatitis among Aboriginal Prisons, it highlights the need for individual prisons to develop culturally appropriate responses to their imprisoned population.

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The Department of Corrective Services reviewed clinical service provision in 2009, and ‘sought independent advice on the structure of the (Health Services) Directorate and delivery of its clinical services.’110 This review was a consequence of the Thematic Review of Offender Health Services recommendation to transfer prison health services to the Department of Health. The previous response of the Department of Health changed with support for prison health services to be transferred with additional recurrent funding of $20m per year. The review notes that ‘the transfer did not occur.’ A range of systemic problems in providing health care by the Department of Corrective Services are described in the review, and that there remained a ‘compelling’ case for transferring health services to the Department of Health. These systemic problems include: • ‘Barely adequate’ corporate support for health services within the Department of Corrective Services, with a ‘negative impact’ on the needs of clinicians • P  oorer pay for clinicians working within corrections in comparison to those working within health, chronic understaffing and professional isolation of staff • Challenges for the Health Services Directorate with continual changes in clinical accreditation • D  epartment of Health expertise in managing communicable diseases, which is described as the most dangerous health risk in the correctional setting • T  he different philosophical approaches of corrections and health providers, with health service decision making influenced by security and cost, health promotion interventions such as bleach distribution not supported by correctional staff, and the lack of adequate infrastructure for health services. The review describes the poor health status of inmates, and that overcrowding, the prevalence of high risk behaviours, the lack of access to safe injecting equipment and the ‘inability to effectively isolate infected prisoners’ contribute to the risk of communicable disease transmission. The Western Australian Office of Health Review receives complaints about prison health services – 262 complaints in 2005/06 and 389 in 2006/07 were received about prison health service provision which related to ‘treatment’ and ‘access.’ The Ombudsman Western Australia also investigates complaints from prisoners, and the 2007 annual report noted 28 allegations concerning health services. No additional information on the details of the complaints is publicly available. A report titled ‘Reports Pertaining to the BBCD Training Needs of Nursing and Custodial Staff, BBCD Training 2001-2003’ summarises custodial staff training needs. The report appears to have been produced by the Health Services Directorate of the then Department of Justice, although this can not be confirmed, and it includes findings of a report prepared by the Sexual Health Program, Department of Health, 2002. The report notes the following: • L  ack of training of prison officers in blood borne viruses over the previous five years, unless they had been inducted within that period • T  he survey used was approved by the WAPOU (prison officers union) with the exclusion of a question concerning needle and syringe programs which was considered ‘provocative’ • More training required about hepatitis C as previous training focussed on HIV • Low level of knowledge of first aid among prison staff • Perception of a high risk of sustaining a needle stick injury during a cell search by prison staff

• S  everal prison staff stated that education about blood borne viruses for prisoners was not useful as it meant that prisoners knew how to transmit viruses. The impact of this was said to be prisoners biting the inside of their mouths before spitting at officers • Fear of prison officers of being injected by a blood filled syringe. A review of the blood borne virus training program for prisoners, ‘Keeping Safe,’ was undertaken in 2005.111 The Department of Health and Ageing funded the Sexual Health and Blood-Borne Virus Program of the Department of Health to increase ‘access of people in correctional facilities to up-to-date information regarding BBV prevention and health maintenance.’ The review recommended a complete re-write of the package with the inclusion of an ‘Entry and Exit’ program, and the development of a formal evaluation framework. The report findings were framed in two sections – one looking at the operation of the program itself, while the other focussed on the context in which the program was operating. The evaluation found: • The Keeping Safe program was supported by corrections staff with concerns that the program:

– Provided information rather than supported behaviour change



– Frustrated prisoners, given the lack of means to change behaviour



– Was known as an intervention for ‘poofs and junkies’



– Provided information which could be used against officers in conflict situations

• That offenders ‘have a higher knowledge level of BBVs than some staff’ • B  lood borne virus testing on entry to prison is affected by ‘information overload’ with little time for providing pre-test information • O  ffenders need to have confidence in Health Centre staff if they are to disclose sensitive information about risk behaviours • T  he decision handed down by the WA Industrial Commission supporting the provision of infectious status of prisoners to prison staff should be reviewed. In describing the broader context of the operation of the Keeping Safe program, the report noted drug use related issues • A  n increased prevalence of amphetamine users in prisons, which was associated in increased attacks upon officers • An increasing number of drug overdoses in the prison system • T  hat Bandyup had the highest percentage of offenders that injected in the previous month, with between 6-25% of offenders in other metropolitan jails having injected in the last month • A  t the time of the interviews, while Perth experienced a ‘heroin drought’ supplies of heroin available to offenders had remained constant • A cost of $100 to rent a syringe for an injecting episode • Each time a syringe is confiscated the available syringes are shared by more offenders • A marked increase in the number of Aboriginal offenders who injected drugs • O  ne doctor reported poor injecting techniques developed when people initiated injecting within the prison system, and the spread of injecting drug use in rural and remote communities when offenders are released into the community. • A  Peer Support worker reported that to avoid urinalysis detection, some Aboriginal male offenders had switched from cannabis use to injecting.

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The authors concluded that needle and syringe programs would ‘in all probability be introduced’ given public health concerns and the fear of litigation. There was a level of support from officers as long as the implementation plan was carefully tailored to the environment and developed with sound policy and protocols. Fifty percent of health service staff surveyed opposed the introduction of a needle and syringe program, while 40% supported its introduction. In relation to needle and syringe programs, the report recommended Increased information dissemination to prison based staff to reduce the amount of misinformation and fear regarding Needle and Syringe Programs That Health Services commence the development of a discussion paper for senior management at DOJ (Department of Justice) on the subject of needle and syringe provision for offenders, nominating a number of models that have been demonstrated as effective in other jurisdictions.

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Section 4 – Key informant interviews The following section describes findings from interviews undertaken in each Australian jurisdiction. A total of 53 national, state and territory informants were recruited on the basis of their expertise, professional responsibilities and leadership in key areas of corrections and public health sectors. Informants worked in either correctional (15) or health departments (12); non government organisations providing social and/or health services within correctional settings (9) and to released inmates (4); Indigenous health organisations (5) and other experts (8). The interviews were recorded, fully transcribed and verified, and subjected to an iterative coding process. Themes arising from the interviews were determined and described after progressively establishing key issues. Given the national perspective of the project, and to reduce the potential for identifying specific individuals who participated in the study, only issues with national or cross jurisdictional implications are described.

Corrections legislation and health There have been vast philosophical and practical changes to health systems over the past few decades. These changes are framed by the World Health Organisation and its definition of health as ‘a complete state of physical, mental and social well-being, and not merely the absence of disease or infirmity,’ and of the Ottawa Charter for Health Promotion. The evolutionary nature of the prison health model was reported to have occurred in one jurisdiction over the last five years We have an 1850’s model of health care that we have used as a template to re-invent itself in successive generations and just expand… we’re moving away from it now. (h33) Legislation covering correctional settings was described in one jurisdiction as being a blunt instrument which does not support effective or modern health service provision The (legislation) still reads as if we… had an infirmary or we had a prison hospital and… according to the legislation (a) single medical officer. (h33) There were significant differences in perceptions between informants from correctional and health backgrounds of the importance of the legislation affecting their work. One informant from a health background working within the correctional system noted We comply with the legislation such as the Public Health Act and the Privacy Act whenever we implement any strategies or policies related to hepatitis C, so that’s sort of our broad overarching framework. The other thing that actually influences our service… is (the) Crimes Act, which is more the custodial aspect, and… impact(s) on the way that we deliver our HIV and hepatitis C services. Sometimes there’s conflict between those two Acts. (b4) That corrections legislation was out of date, particularly in relation to health issues, was expressed in several jurisdictions. These concerns were noted in one jurisdiction where at the time of the interview, new legislation was being developed and with the informant concerned that this update would not reflect the need for effective health service provision within prisons. It is 150 years out of date and they should use the opportunity… to… say, ‘What should the health provisions of a prison be and how would you envisage we legislate to make that happen.’(h36) The core legislation permitting the operation of the correctional services privileges security, while providing little attention for describing the responsibility for the provision health or welfare or other duty of care issues In prisons they are mostly governed by the Correctional Services Act… if you put in the word ‘health’ it only comes up once. (e21)

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Does the legislation support us? It doesn’t support us in a lot of areas; it still has that strong focus on punishment… to a lesser extent about rehabilitation, but not much about care and wellbeing. (h33) The context for delivering health services in an environment where the legislative focus was on security, led one informant to comment that there was little cohesion in implementing health interventions within correctional settings If you consider the relationships between prison health, corrections, and similar agencies, there’s nothing cohesive. There’s actually nothing combining them. (e20) Correctional services were seen to have limits which are supported and detailed by legislation and restrict their ability, interest or capacity to implement health related interventions Their business is safe containment and rehabilitation, that’s what it (the legislation) says and that’s their key performance indicators. But it’s not health. (e21) Having non-proscriptive legislation in relation to the delivery of health services within the corrections system was identified as important They should… have a suitably non-proscriptive model that doesn’t specify anything in particular other than that the health services should deliver health care consistent with community standards at that point in time. (h33) In developing new legislation, informants noted that attitudes supporting the development and implementation of a needs based health response within correctional settings were not supported This is not a school for the medically compromised; this is… the school of hard knocks. (h33)

Correctional culture and health Providing health services within the correctional setting was noted as challenging in an environment and culture where coercion is a fact of life. (h33) An informant described the correctional environment as that brutal environment which is the custodial system. (g31) This environment influences the delivery of services, and how staff including health staff may respond to it Staff get taken hostage by the environment and their behaviours change because of the environment they’re in. (h36) The legislation for corrections and the culture it engenders focuses on supporting and maintaining secure environments Corrections is about security, it’s about prisons… I’m not saying that they did a poor job with health… their emphasis was something else. (g31) Legislation was seen as fundamental in supporting correctional services culture – the legislation backs up the culture of the prisons. (h39) However, its utility was questioned, particularly in its role in hepatitis C transmission within correctional settings where legislation was described as virtually irrelevant. (h36) One informant was clear about the impediment to preventing hepatitis C transmission within correctional settings it’s really the culture. The culture is the obstacle. (g31)

Developing and implementing health interventions within correctional settings was challenging for people without prior professional experience in these settings. One informant with a public health background described their experience in the correctional system as Alice in Wonderland. I went down this tunnel and I came to justice, and it was like four and four equals 10, white was black and black was white, and it was a parallel universe for a health person. (e21) There was a specific skill set required for health professionals to work effectively within correctional settings. This skill set required an acknowledgement of a different language, framework and priorities You have to speak health but you also have to speak justice. You have to have respect their key performance indicators, and realise that they come from a different discipline, they have a different vocabulary, they have a different body of knowledge than health people. (e21) Comments made in one review of prison operations were reported to have changed perspectives on how inmates were treated within health services – it became virtually illegal in our service to call them ‘prisoner.’ This nomenclature was seen as being important in framing the delivery of health services, and in attitudes towards how inmates are treated An offender – if you look up ‘offence’ in a dictionary it’s something that’s repugnant and if you call people something repugnant then you’re going to treat them like they’re repugnant. (h33) Rather than a core function of corrections, one health worker characterised their position within the correctional settings as being a ‘guest’ and described one implication of this The fact that we are guests on their territory creates a problem for us. We come from a health model whereas they come from security and re-integration back into the community model. They’re the controllers of the environment. (b4) Informants noted attitudes by correctional staff about health, where inmate behaviour was pathologised, the minute there is some bad behaviour it’s a medical issue. It’s the mentality that because something is not normal it’s medical. (h33) Coercion within correctional settings between security staff and inmates was replicated between health staff and inmates Staff… assume that if they don’t provide a treatment that the patient wants, that this person will become aggressive with them and that will result in charges. (h36) Regulations were also seen to be used for protecting both inmates and health staff It’s actually about… protecting the patients from the doctors… and nurses from the patients… it’s also about protecting the patients from their compatriots. (h36) One informant identified quite distinct cultural changes occurring over time in correctional settings and in health service delivery In health now, for a long time, we’ve had a big push on transparency, to make sure that we’re giving best care…. (Corrections is) an area where there hasn’t been that transparency. It’s been caught up in the mumbo jumbo of correctional safety. (d11) Departmental leadership in the correctional sector was seen as not having consultation skills (The) department is headed by an old copper.… I have never met a copper who knows how to consult. He knows how to tell people. (h33) Another informant described corrections as pretty much a closed shop… they don’t like a lot of input. (d14) Speaking a different language to correctional authorities meant that health officials had learned to be sensitive in dealing with these authorities – it’s gently gently with corrections. (a3)

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Informants noted a cultural change occurring within correctional services which was having a significant impact on the acceptability of the implementation of specific health programs including hepatitis C prevention programs The workforce is changing… a lot of the old time officers are coming up for retirement… and they had to train new people. They’re like a breath of fresh air, and they’re going ‘but don’t we have needle and syringe programs (in prisons)?’ You’re getting a better educated, younger workforce who is asking these questions. (h38) This generational change was noted by one informant as permitting the development of harm reduction initiatives in correctional settings From my perspective I supported safe tattooing but the organisation wasn’t prepared to accept it at this stage. I think it will be a bit of a generational change for prison officers because of the negative associations (with) gang behaviour. (b5) Specific prisons were noted as having developed their own correctional culture. This occurred in response to the characteristics of the inmates, social context of the broader population and of the community in which the prison is located X (name of town) people tend… to be more empowered, more involved with local government, more involved in the day to day running of the town. (h35) X (name of prison) ought to be a terrible prison, and is a terrible prison in many ways. But it has always been a community prison. (h36) The connection between prisons with a high percentage of Indigenous inmates and geographical remoteness when compared to metropolitan prisons can result in cultural differences Y (name of prison), because a high proportion of them are Indigenous, they run really well. … It’s a little more laid back there as well, the officers are laid back, they’re quite open to things, and they’re a long way away from head office so they’ve got a little bit more free will to do their own thing and you do notice the difference. (d14) A different kind of culture had developed in another remote location They’re all doubled up in Y (name of prison), they’re about 400 over capacity, highly indigenous, they’re about 80 per cent Indigenous up there, not a lot of great dramas, however they are all engaging in a lot of sexual activity. (d14) A different perspective on what makes a good prison was provided by another informant One of the best prisons in the state is B… You would not expect it to be because it is (a) maximum-security prison… B is very orderly. Everyone knows what has to happen. There’s no confusion with B. I’ve never seen anyone in a flap, anyone confused, anyone less than professional… it’s a very safe environment. (g31) The threat of regulation by litigation was acknowledged as being the motivating factor for introducing condoms in one jurisdiction. This element was seen as a powerful force in changing correctional practice The threat of litigation arising from personal damage seemed to be something that can overwhelm cultural change. (b5)

Non health or corrections regulation While most informants noted correctional and/or health related legislation as the major regulatory force in implementing hepatitis C prevention interventions within correctional settings, other legislation was identified as having an impact on populations within the community with greater exposure to correctional services. This was particularly important in the relationship between Indigenous communities and corrections, and particularly in Western Australia where almost half of the prison population are Indigenous. In terms of Aboriginal people… the history of Western Australia is one of discrimination and fear of the Government or any Government services, and while the Act was repealed, the 1905 Act… meant basically the people in the south of the state got colonised twice, as opposed to once in the north. (h35) Legislation targeting and criminalising Indigenous people continues to be enacted and has been recognised as increasing the correctional population and therefore exposure to hepatitis C. There’s the Move-On Notice, which police officers can simply issue to any person on the spot and they cannot return to that same location for a period of 24 hours… you can just be given one by a police officer just by walking down the street. (h35) This legislation was seen by one informant to be targeting Aboriginal communities – that’s… really targeted at Aboriginal people, purely and simply. (h35) The Western Australian Hansard of the 14 November 2007 notes that 55.2% of Move-on Notices where ethnicity was noted were issued to Indigenous people. Legislation supporting the over-representation of Indigenous people in correctional settings, was identified in other jurisdictions More and more, Aboriginal people are being incarcerated at a higher rate than ever before. It has to be a legislative issue. (b8) Several jurisdictions have enacted equivalent legislation that permits the Move-on Notice, with the same impact Aboriginal people are over-represented in prisons… we’re often targeted by police, so even if you’re not doing anything wrong, Aboriginal people are over-targeted by police… ‘Move-on laws’ have implications. (b8) Media were recognised by needle and syringe program key informants as performing a regulatory function. This perspective was not as prevalent within correctional settings, although the fear of media exposure and its impact on political careers were seen by one informant as reducing the potential for implementing hepatitis C prevention initiatives in prisons It’s the old front page of the Herald Sun, or Current Affair, Today Tonight, that combination. That’s the thing that prevents change. (g30)

Learning about legislation A range of experiences were reported by informants in how they learnt about legislation affecting work being done to reduce hepatitis C transmission in correctional settings. For some informants, learning about legislation was reactive – a lot of that stuff came at an ad hoc basis (e16); osmosis, I guess. (d11, g30) For another informant, knowing the legislative framework was elementary in their professional responsibilities I always look for the legislative framework for everything I do. It’s fundamental… you look at what the law says and if there are standards and if there’s codes of practice. That would be your Bible, your benchmark. (e21)

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Arrangements for providing correctional services are the responsibility of state and territory government, and the breadth of experience of key informants with legislation is broad. Generally, people working within correctional services were clear in their understanding of the legislation affecting health and welfare of inmates within their jurisdiction. One informant reported that the development of a correctional communicable diseases policy in their jurisdiction highlighted the range of legislation affecting hepatitis C prevention The legislation that was quoted in there is Correctional Services Act 1982, the Public and Environmental Health Act 1987, the Public Sector Management Act – that’s a state Act – 1995, the Occupational Health, Safety and Welfare Act 1986, and the Commonwealth Disability Discrimination Act 1992. (e18) The ad hoc nature of learning about legislation also included professional involvement in steering committees or advisory structures We had a committee… (with) representation from the non-government and government sector and was headed up through… Health… through that process I became aware of different areas of legislation. (e16) While no formal process for learning about legislation was reported by many informants, this has changed in some jurisdictions and institutions for people coming into the correctional sector When I started in the Department there wasn’t a formal induction program, whereas in the last couple of years our organisational or development branch have created a four day induction program for new staff members. (e16) Knowing legislation provided a window for opportunity for one informant to determine what could be achieved within correctional settings It’s important to know what you’re dealing with. It’s important to know what’s possible and what, technically, isn’t possible, but that you could make possible. (d11) With several hepatitis C related interventions being delivered within correctional settings by external agencies, one informant reported that these external contractors were not systemically provided with information about regulations affecting the prison setting or how these regulations were implemented The prison system has a lot of contractors. I’m not certain the contractors are actually aware of all of the policies or legislation that they need to be made aware of. (g31)

Implementing legislation Correctional services were regularly reported by informants to have had clear processes for the development and dissemination of legislation, policy and procedures. [There is] a fairly well established process for embodying legislation in policy and procedures and disseminating those across the organisation and having it available to everyone. (b5) For one informant, the legislative framework in their jurisdiction supported developing and implementing local independent responses, although this highlighted a need to ensure these site specific responses were disseminated and effective While you have one Prison Act, you have 13 sites, and each site is different, and you need 13 approaches… but where’s the quality control?… there’s going to be a process now that when there’s a policy that comes from head office… then when they have written their own standing orders, it will appear on the web. (h38)

Despite the existence of legislation, the delivery of any intervention in individual prisons is informed by the culture of the specific institution – you have a particular group of people, officers, guards, who really frame how prisoners are treated… the general manager, I don’t think has that much say. (e20) Several informants noted that the people and personalities who apply legislation, and the structures in which legislation is implemented affected the effectiveness of the implementation – it basically always comes down to the director saying it’s OK or not. (h37) The impact of individuals working within correctional settings, compared with legislation or guidelines, influenced the implementation of interventions to reduce the impact of hepatitis C on inmates. This was noted by one informant in relation to the delivery of hepatitis C treatment within correctional settings There’s still a couple of (prisons) where it’s reliant on the people in the positions who aren’t allowing access – or blocking access to treatment. (d10) This perspective was also identified in relation to interventions to reduce the transmission of hepatitis C One particular area that comes to mind – and it could either be the area of barber-shopping, tattooing, bleach – all of those things; it’s really at the discretion of the prison and the prison officers. (g31) Legislation establishes and maintains standards. However, one informant noted the importance of people being more important than legislation You can have as much regulation as you want but unless you’ve actually got the appropriate staff, you know with priorities… not a lot of change will occur. (d13) One informant described one fundamental aspect of developing effective responses to hepatitis C transmission within correctional settings The prisons that really acknowledge the problem… have good program staff, clinical staff. (g31) While legislation was seen to provide the context for the delivery of health service, given the lack of financial resourcing, this provision was often seen to be dependant on the commitment of individual staff rather than the development of a systemic and sustainable system It is really dependent – very people dependent… In (one jail) there is a woman… she won’t take no for an answer… she works 10 hours a day and she will come in at the weekend and all this kind of stuff.… She will need three people to replace her. And you have got to have a system in place. (h36) External reviews of correctional services in several jurisdictions over the past few decades have noted the tension occurring between the independence of each prison and the relationship with the central authority. Several informants noted activity in specific prisons which responded to the social environment in which the prison was located, and of the needs of the broader community and prison population. This was of particular importance for Indigenous communities and their over-representation within correctional services as inmates Superintendents adjust for local situations – they’ll weave in a lot of the cultural stuff… for instance, if they have a senior elder, he won’t be expected to go to the BBV group because it will be offensive to him as an Aboriginal elder, but they have the capacity to run elders groups where they just discuss BBV… there’s a lot of flexibility in there. (h38)

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The development of these individual site-specific responses can affect inmates, particularly given the large number of movements which occur within the prison system and where there may be several health related contractors Prisoners get really cranky when they move around the system and go, ‘well at this site I get told this about health and this site I get told this.’ (g28) The tension between centralisation and local control occurs where significant changes have occurred in the client group most affected by corrections The type of Aboriginal offender they have now is quite different to what they used to have. Most – a lot of them are all sort of on amphetamine type… instead of just ordinary alcohol-related, type offences.… They say they’re a lot harder, in terms of in the prison, to manage for the first few days if they’re using amphetamines. (h35) Substantial regulatory change was thought to be needed to respond to this changing clientele, particularly given the impact of changes in government policy towards people with mental health issues We’re not dealing much with the career crims, the non-drug using crims. We’re looking at a young population, poly drug use, serious behavioural personality disorder, since they closed down mental institutions, more people with dual diagnosis. (h38) There was a broad range of legislation being implemented directly affecting the operation of correctional settings. Several governments during the time of the informant interviews were supporting a ‘tough on crime/criminals’ public policy. The impact of government support of these policies was increasing inmate numbers, which required one corrections department to investigate housing alternatives particularly regarding inmates who may place other inmates or workers at risk of hepatitis C infection We have the situation where prisoners are doubled-up… there is a risk that prisoners are engaging in behaviours that could place at risk other staff members or other prisoners. (e16) Housing increased numbers of inmates without additional accommodation raised issues about the responsibility of the department in relation to inmate safety. Advice had been sought from Crown Law on issues related to the disclosure of an inmate’s blood borne viral status. Crown Law actually looked at a number of Acts – at the Health Act, the Correctional Services Act, the WorkCover legislation, and… it said… if there was a risk to the health and safety of prisoners or employees, that information needed to be disclosed. (e16) The issue of privacy and the communicable viral status of inmates are more fully discussed later in this section. The development and implementation of effective public health interventions within correctional settings were not based on good public health practice, standards or even security concerns, but for one informant reflected political opportunities The stars just never aligned, but the opposition came out… so now there is bipartisan support for it. (g28) Informants working within correctional services were generally aware of the correctional regulations applying within their environment, and how these regulations were disseminated. One informant noted a lack of legislative guidance to staff about issues related to responding to the sexual behaviour of inmates, and where staff responded with denial. The staff were aware of it because I brought it up in staff training. They all kind of laughed and said, “Yeah, yeah, we know, we know it’s out of control up here”, but they’re not doing anything about it… They can’t… Certain policies… don’t enable it. So the only way they can deal with it is to turn a blind eye. (d14)

Standards and guidelines Standard Guidelines for Corrections in Australia (2004) includes guiding principles for the provision of health care within correctional settings. These guidelines were perceived by one informant as deficient – there’s nothing in there (h38), and did not recognise the challenging population group or of objectives of health care provision within correctional settings. There’s no national standards for… health care in custodial environments… We use a philosophical underpinning that we should do no worse than the community in providing access to care and the quality of care. We should try and match those standards and we should have additional standards that enshrine some of those things that are harder to do in a prison. (h33) Legislation provides the framework for developing policy. Within correctional settings various regulatory instruments including guidelines were noted as important in developing policy When we’re writing policy we have to refer to the Prisons Act, to the Prison regs, and also to the Australian Standards for Corrections which is a bit of a warm and fuzzy document and it can be useful depending on what you’re writing policy on. (h38) While formalising processes was seen by one informant as motivating policy development, another informant detailed other reasons including standardising practices, delineating roles and responsibilities and highlighting specific issues with key stakeholders Standardising… delineates the roles and responsibilities of all the managers, supervisors, staff, executive… they should’ve seen now that these are their responsibilities and hopefully that will be more motivating for them in how they do that, and also to occ health and safety committees and union reps and all those sort of people as well. (e18) The Australian Government Ministerial Advisory Committee on AIDS, Hepatitis and Sexual Health took several years to develop a document supporting the implementation of effective hepatitis C prevention initiatives within correctional settings. While interviews were being undertaken, this document had been completed but not approved. The guidelines were as having an important role in supporting communication between correctional services and correctional health services about hepatitis C We’re still waiting on the prisons and hepatitis C document, which is ridiculous. Then we could incorporate that document if we had a working group from each jurisdiction… looking at custodial and prisoner issue… the national (hepatitis C) strategy talks about bringing all the prison jurisdictions together to discuss a whole lot of stuff. (h38) The Ombudsman’s report in Western Australia noted the plethora of regulatory instruments operating within prisons which is replicated in other correctional settings. Maintaining the currency of these instruments required resources We have 300 policies… keeping them up to date is quite difficult and we have basically two staff plus two managers who are almost full time on that case. (h33) The resources required for policy development include time and communication with a range of stakeholders. The time involved in this process involves the risk of losing the drivers and organisational commitment for the specific policy We’re on draft 18 working in collaboration with Occ Health and Safety and the Department and people like J and operational people, but the players change and it’s fallen in a heap.… The manager of Occ Health and Safety will resign and then the health promotion officer will retire and they wait for other people to come on board and the people take a long time, so it just stops. (e21)

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A gap in policy development at a national level, and which was identified as the responsibility of the Commonwealth Department of Health and Ageing was of infection control guidelines within correctional settings The Australian Government Department of Health and Ageing, their Infection Control Guidelines, have you seen those?… Really comprehensive… I would’ve thought there would’ve been or should’ve been a similar thing for the Prison Infection Control Guidelines. (e18) The experience in other jurisdictions, both nationally and internationally is important in testing and adopting policy They do it in one jurisdiction and the world doesn’t end, in fact things are better so then another jurisdiction tries it and another and so it goes, and that’s what happened. (e21) The inclusion of inmates as a key priority group within hepatitis C strategies was useful in advocating for hepatitis C related interventions The state one has been helpful. Primarily because it has put prisoners on the agenda and made it very public that from (the) public health… perspective, until hepatitis C is addressed within the prisoner population, then the transmission of that in the community is going to be hindered. Just the fact that it is actually now a priority and it is in such a high profile document has been really valuable. (g28)

Delivering Health Services Prisons provide fundamental opportunities for people to improve their health status, particularly for a population whose access to the health care system is recognised as being poor and who experience poorer health status Lots of people’s health does actually improve… because they’re able to get regular meals, they’re not having the same level of access to alcohol and drugs.… Lots of people’s mental health improves in prison because they’re getting their medication; they’re getting access to tertiary level mental health services. (d15) Significant changes were reported to have occurred to the delivery of prison health services over several years and the positioning of health services within the broader correctional framework. The issues valued within this framework meant that the impact of these changes to health could not be publicly acknowledged Often we provide better health service… to our patient clientele than they would get out in the community. Embarrassingly, we are not allowed to say this because the Minister gets really angry. In a lot of instances we actually provide better care, for instance hepatitis C, than people would get in the community. (h33) An issue raised in correctional services reviews over the past few decades relates to identifying which agency is best placed to provide health services to inmates. The issue is not resolved and was raised by several key informants. One informant reported health services to inmates would be more effectively done If you make health services the responsibility of somebody whose core business is providing health services, there is no longer any excuse for doing it short of an acceptable needs based community standard. (h36) Processes overseeing health service delivery within correctional settings were noted by several informants. One informant commented that the various relationships developed to ensure an effective health service

We have a... high level committee that meets quarterly – that has a membership from executive level within health and (corrections) as well as all the key stakeholders, like forensic mental health, ambulance services, dental services... We also have an operational (correctional) health committee that meets every two months. Any operational issues… are… either dealt with at that committee or they might be flagged at the high level steering committee to be resolved and discussed. That process seems to work quite well. (e16) In clarifying which agency within this environment is responsible for specific activity, one informant working within corrections was unable to determine the boundaries between health and corrections I’m just getting my head around how that works. I’ve been to some operation meetings – I understand that a number of the prisons, they have the health services, where the Department of Health is separate. So they (have) a mini-hospital inside the prisons and so they’ve got their doctors and their nurses that work in there, and they are in a sense separate from us. (e18) One perspective reported from the health sector was that health service provision within correctional settings consisted of access to general practice – it is basically a GP service in prisons. (h36) There is little legislative obligation or guidance for correctional services to address inmate health or welfare issues. This meant that some of the issues needing to be resolved through these health committees included issues related to the costs involved in inmate health It even came down to prune juice for people who were on the opioid substitution program… we were getting requests from business managers in the institutions saying we shouldn’t be paying for this, or things like furniture for the health staff in the health centres. (e16) A specific issue would be resolved by as follows: if it was covered under Medicare in the community, health would pay for it. (e18) Access of inmates to Medicare services is another issue raised in correctional services reviews which have not been successfully resolved – it is ludicrous that we don’t have it (h36). The rationale for this lack of access was addressed: The Commonwealth say that the Commonwealth Grants Commission Scheme for allocating moneys to the states takes account of the costs of prisoner health, and it would be doubledipping. This is absolute crap. (h36) The lack of resources limits the delivery of services, even when there is support available It really does come down to the money side of things because you’ll find… they’ve got a commitment to do this, but it’s the money. (h37) The aim of prison health services mostly reflects clinical service delivery, rather than health promotion or non-clinical health related interventions – our aim is to provide them the same quality of treatment that you can get in the public hospital system. (d15) The conflict between corrections and the needs of inmates was clear to one informant – they really need to build a new tertiary mental health facility or hospital rather than a new prison. (h35) As noted previously in this report, the delivery of alcohol and drug services within corrections are provided by correctional, rather than health services. This was described by an informant as follows: There’s a disconnect… whereas you’ve got the counselling aspect linked to custody and you’ve got the treatment being linked to health. Of course that doesn’t make sense to anybody who understands levels of care for drug and alcohol services. (b4)

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The demarcation within correctional services implementing responses to drugs as a security issue, highlights the punitive (or criminal law like) nature of the response to drugs in prisons, rather than a health issue response The Drug Strategy within Corrections is actually a separate area, it’s not within (health) control… treatment is a health issue. (d15) In another jurisdiction, an informant noted that the delivery of health services was separated between clinical services provided by the health service, and health promotion and psycho-social support for inmates undertaken by corrections Straight medical intervention, general medicine, psychiatric medicine and so on, is provided by health, but aspects of health promotion, drug and alcohol counselling, psychological work, those things are provided by (correctional) staff. (b5) Another health related issue noted in several external reviews of prisons relates to the delivery of health promotion interventions. Lack of resourcing for health service provision within correctional settings meant that health promotion activity had lost priority within a system which was under-funded and dealing with complex health needs. One of the things that went long ago… and is now virtually invisible is health promotion. (h36) Where health promotion activity was being undertaken by correctional services in one jurisdiction, one informant noted the resources available for this activity were limited. We’ve still got Corrective Services trying to provide health promotion activities on a much limited budget. As a result of that their staffing has obviously decreased, and so rather than having a health promotion officer in each of the different correctional centres, they might only have three for the state now who are responsible for training all the other people. (b4) At a practical level, one informant reflected on the barriers to health promotion being the responsibility of health rather than correctional services If we wanted to implement a health promotion strategy for example and the custodial arm would say, ‘No, don’t think that’s a good idea,’ well it got squashed… now that we sit under Health when somebody goes, ‘This is what we want to do,’ we get support for it. So in that aspect the care has certainly evolved. (b4) In some jurisdictions, even where there was an awareness of the need for more holistic responses to health issues, it still reflected extending the current medical/clinical model Our new way of moving forward – we’re looking at all aspects of health, psychological, mental health… one of our problems is that it is a medically based model and we’re moving away from that to a health practitioner model. (g28) Given the lack of resources, priority and context, recruiting health staff to work in prisons was noted as a challenge in each jurisdiction We have a doctor shortage generally. It’s hard to get someone to come and work in prisons… because it’s not easy – our clients are complex and they have co-morbidities… it’s difficult to work with the Department. (e21) This lack of resources overall for health services within the correctional setting, for one informant, meant that while there may have been political support for addressing hepatitis C related issues in prisons, programs could not be implemented or were being reduced

At one level we’ve got the minister say ‘yeah, hep C, lets get on top of it’… and then the next breath you have (corrections) cutting services. (h38) The implications of the lack of duty of care for prisoners on remand, and a limited responsibility of correctional health services to these people was described in an incident where an inmate had been shot That guy that had been shot …their (correctional staff) duty of care was only to ensure that they maintained that wound. So they wouldn’t operate because the cost would go on them… he doesn’t fall under their care because he hadn’t been sentenced. (e20) Prison settings are complex with health services delivery dependent on the nature of the environment and clients. The correctional environments in which harm reduction or hepatitis C prevention initiatives are implemented vary, and affect their implementation and effectiveness At a remand centre… people are moving so quickly through that system… whereas some of the more medium, low security prisons, where people are there for a significant amount of time, you’ve got more opportunity to train them and then for them to take on that role. (e16) Delivering health services in correctional settings is complex given the diversity of the clients – an issue noted previously in this report (In)… X prison a few months ago, there were 19 different language groups there, plus English. (h33) As noted in the external reviews of health service provision within the correctional setting, there was conflict for health staff in directions given by correctional staff in relation to their professional responsibilities and direction provided within health services How do staff deal with when the superintendent orders them to conduct a body cavity search on a patient and my answer is, ‘Is your job worth this – because if you do it, I’ll take you to the nurses or medical board.’ (h33) This conflict was also expressed in relation to legislative provisions and responsibilities ‘But the Prisons Act said,’ and I said ‘I don’t care what the Prisons Act said, your professional responsibility and your act – the Nurses Act and the Health Act and the Medical Act, say you don’t do that.’ (h36) One person’s experience in providing mental health services to inmates as a health sector worker rather than as an employee of correctional authorities provided another perspective on confidentiality It meant that I had quite clear parameters on where I really had to report things to, and where I didn’t… which meant that I could afford those women a degree of confidentiality that I wouldn’t have been able to afford them had I been working (in) Corrections. (d11)

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As noted previously, wider political decisions and influences affect the bureaucratic context in which health interventions, including hepatitis C related interventions can be developed and implemented. These influences included ‘tough on crime’ campaigns promoted by several state governments and the impact of these on providing correctional services. The (prisoner) numbers have just gone through the roof… we are in crisis mode. We are at over capacity and it’s a really bad time actually. It’s just different policies. (e21) The social positioning of inmates within the broader community was an issue affecting the capacity of those working within health and corrections system to advocate for or develop and implement health supporting interventions Our community I don’t think are very gracious about… some of the most vulnerable people in our community.… Like it or not we can make a difference in their lives and send them out a little bit more informed or supported or educated, and maybe making some better choices. (g28) Correctional service delivery in some jurisdictions have been heavily scrutinised over past decades with significant external reviews, as a result of which the structures in which correctional services are provided, have been transformed. The effects of these changes significantly affect the effectiveness of the operation of the department This department is not travelling very well. It is finding it very difficult to re-balance after the… report… bureaucratically they are all over the bloody place. (h36) The department is pretty dysfunctional. (h39) New correctional legislation is being developed in one jurisdiction. The lack of confidence in the operation of the department was reflected in comments from one informant about the consultation process that had been used for development of the legislation There will be a so-called green bill published some time in the next three or four months. That means the Minister is prepared to jump past the full consultation… to the point that there is a kind of working document that only the great and the good… have any effective input into. (h36) This abbreviated consultation process, in which broad community consultation was omitted, is a response to political issues The department… had done such a poor job in putting together a kind of rational discussion of what they are trying to do that there has been a delay, a long delay… (the Minister) is getting frustrated (and) wants something done before the next election, which is scheduled to be about two years time. (h36) An early election was called in this jurisdiction, with a subsequent change of government, further adding to the uncertain political context for a very politically sensitive regulatory subject matter. As noted previously, responsibility for the delivery of health services within correctional settings is undergoing substantial change in several jurisdictions. In Queensland, some of the reasons given for moving responsibility for providing health services corrections to health include expertise and recognition of the fact that care is being providing to individuals who move through correctional systems and into the community The main reasons are health services are getting ever more complex. The role of Corrective Services is to provide a safe and secure environment and safe and secure containment – they’re not experts in providing health services. (d15)

This move was clearly welcomed by another informant in that jurisdiction Essential health services within corrections (are) wandering through… a dark valley, for God knows how many years. (d11) While inmate health care is not a core function of corrective services, it is not necessarily a priority within health related agencies given competing demands There are huge competing needs …mental health… is politically on the agenda, it’s very sensitive. Emergency rooms are overwhelmed.… To try and do public health in prisons, it’s hard to access the resources and interest. (e21) While working in a challenging environment with demanding clients with poorer health status, there was not the support provided by a health department for the delivery of services within prisons You’ve got the Department of Health to work in too, and we are a very small player on the food chain. We’re a very low priority. So that’s difficult getting things up. (e21) The recommendation by the Inspectorate General of Custodial Services in Western Australia, reflecting previous recommendations of the Ombudsman, to move health services from the Department of Corrections to the Department of Health highlighted the lack of support for inmate health issues from outside the Department of Corrections (There are) a series of issues with the health system here that are much more pressing and doesn’t want to be distracted by a mini or micro issue. (h36) The perspective from another jurisdiction was similar We had a review that said, ‘If corrections health moved to health it would just be a pimple on the backside.’ That was how someone in health had described it. (g28)

Staff and Unions One informant noted a fine balance between relationships with employees and the development and provision of targeted programs to inmates It’s very politically laden; the whole dynamics with the officers. If they feel that the crims are getting something on top of them, like that money is being placed to run programs for them… it’s very political. You’ve got to be really careful. (e20) The primacy of prison officers (or ‘blue shirts’ as they are known in one jurisdiction) over other professionals working within correctional settings was identified Even the social workers will talk about, ‘Yeah, they haven’t got a blue shirt.’… Their risks or any of their issues are considered lesser compared to the blue shirts. (e20) Unions representing prison officers play a fundamental role in developing and implementing policy, including health related policy and programs, within correctional settings. The union was identified by one informant as being a barrier in implementing policy I: Do they stop things from happening? R: Oh yeah, oh yeah, they can. (e16) Consultation with unions in the development of policy adds to the length of time it takes for implementing it When there’s a change to any process, it can be very lengthy because of the expectation around consultation. So the consultation and sign off process is so long, it can take a long time to implement changes. (e16)

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One example of delays in policy development resulting from consultation with the union and their processes, was the review of an inmate peer support program 120

(The) prisoner peer support program… we’ve had the revisions to it finalised 12 months ago and it is still with the (union) for consultation. (e16) Some reasons for delays were given. Some had little to do with the delivery of health services, expertise related to health issues, or better policy If you’ve got someone who is a (union) rep and they have a personal objection to a program then they can, for a number of reasons, hold it up for a significant period of time… for example, with the prisoner peer support program, there may have been a prisoner 15 years ago who manipulate(d) the use of his position and they’ll remember those stories and the one-off bad examples. (e16) Having direct union support for a specific policy was essential to the implementation of the policy They signed off on it.… It makes a difference if at some stage… staff are not acting appropriately, then you can work with the union to make these things happen, because they’ve signed off, they see the importance of what you’re trying to do. You’ve got people onside. (e18) As noted previously, the implementation of regulation at individual prisons within specific jurisdictions varied significantly. This is unlike the situation with the unions who successfully operate at a state-wide level It’s quite a strong union… recently you had lock-downs because officers perceived… that they were at risk because a weapon was found, and they did a raid. And all the other prisons locked down in support. (e20) Creating supportive environments through developing a skilled workforce within the correctional system was described as important in developing and implementing harm reduction initiatives When we do prison officer education on BBV transmission they get told zero tolerance, but don’t get told about the whole harm minimisation model. What I started doing in officer training... is ‘ok there’s harm reduction, demand reduction, supply reduction, these are (what) you’re involved in and what we’re promoting is harm reduction and it come under the umbrella….’ It’s been an educative process. (h38) Prison officers were seen as playing a currently vacant role with respect to preventing hepatitis C transmission, within sometimes particularly violent correctional settings in which there is a high prevalence of hepatitis C within the prison population They’ve got to be able to look at that and go, ‘Holy fucking hell, that’s wrong, mate, that’s got to stop.’… If it was me in there, I’d go, ‘Woo, woo, don’t. No, you fellas can’t do that.’… But the priority’s not there. (d13) Staff were seen by one informant as having a role in supporting raising or reinforcing awareness about hepatitis C with inmates If you’re raising awareness in the prisoners then you have to do it in the officers as well. The prisoners are going to ask questions; and who are they going to ask, they’re going to ask their unit officer. So if the unit officer doesn’t know what they’re talking about… it’s a bit pointless. I’ve taken the approach of delivering training to both. (d14)

While unions were noted as a significant barrier to the implementation of health programs, one informant reported their surprise at the supportive attitude of correctional staff about health service delivery (Union representatives) put forward… their concerns and what needed to be done. And I was taken aback… the first one was, “More education for the prisoners and for prison officers.’ (g31)

Hepatitis C Prevention There were varied responses to questions about what was being done to prevent hepatitis C transmission in prisons. However, commonly reflected responses embraced the following perspective I: In terms of Hep C prevention, what’s been done in prisons? R: For Hep C prevention? I: Yeah. R: Nothing. (d14) While a large percentage, and in some settings, often a majority of inmates are infected with hepatitis C, responding to the infection was not a priority for correctional departments, and work performed by health services is not valued They don’t see it as core business, they see that as one of my… over-the-top type approaches to getting people better treatment than they get in the community. (h36) One informant, when asked if policy had changed in response to hepatitis C noted There probably hasn’t been very much change. We do have regulations in relation to things like condoms and dental dams being supplied which is probably less relevant to hepatitis C. (b5) The rationale for the lack of change was stated as follows: There have been no major changes in technology about transmission that have caused us to say, ‘Have we got in place enough measures?’ and the only one really that remains outstanding in terms of this whole issue of applied community standard, would be providing for some exchange of needles. (b5) The majority of informants identified that hepatitis C prevention within correctional settings was an important objective, and that responses needed to be multi-faceted Incidence of hepatitis C continues to grow… we’re going to be in big trouble in 10 to 20 years’ time, we need to do something about that. Is it about ensuring we’ve got more treatment programs? Is it about education programs? Is it about NSP harm minimisation stuff? I think it needs to be a combination of all three. (b4) Hepatitis C prevention initiatives being implemented within one jurisdiction were summarised as Our prisoners have got access to condoms and dental dams. We’ve got procedures for handcuffing of prisoners because you’ve got to be – those handcuffs have to be cleaned and wiped down with… alcohol swipes and things, so that you don’t get infected and pass things on. We’ve got a post-opoid substitution program. (e18) One challenge for educators in relation to hepatitis C was that its high prevalence among inmates meant the positioning and responses to hepatitis C needed to be different from that within the wider community. (Inmates) don’t care about Hep C; it’s like having a cold sore. So there’s no big drama with that. (d14) It’s one of the few diseases prisoners are happy to just say, ‘I don’t care who knows.’ (g28)

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This laissez fair attitude towards hepatitis C within the correctional setting provides challenges for implementing interventions to reduce hepatitis C transmission 122

Once a prisoner has heard the message around hepatitis C, they really don’t want to go there again. It’s very hard to get them interested, and you have to look at other ways, of being devious, and getting their attention. (g31) One informant questioned the rigour of the evidence showing the significance of hepatitis C transmission within correctional settings There’s lots of speculation about the role of imprisonment as a risk factor in HIV and hepatitis C transmission, which is based on pretty basic and poor evidence to a large degree…. I’m not at all in any way suggesting that hepatitis C transmission does not occur in gaol (but)… if you look at… this evidence… it’s actually a fairly slim body. (b5)

Harm Reduction One harm reduction initiative described by informants, not actively implemented in relation to hepatitis C, recognises prisons as an independent risk setting for being infected with hepatitis C One of the things to lower the risk of transmission of hep C is to try and lower the prison population. (h35) An alternative perspective was reflected by another informant who felt the protective nature of prisons reduced the level of injecting and exposure to hepatitis C There’s very clear evidence you’re going to reduce sero-conversion amongst a group who potentially use drugs. By locking them in gaol they’re less likely to sero convert than others. (b5) There was a fundamental contradiction noted in implementing harm reduction interventions within correctional settings They endorsed harm reduction. They actually have a policy that it’s a zero tolerance environment because of safety – or perceived safety issues and risks to officers. (e20) Zero tolerance responses from correctional authorities in response to drug related activity within prisons continue to be supported, even with their uncertain success ‘How do we – how do we approach this differently,’ and the… response is ‘Our dogs, our zero tolerance and our supply reduction strategies will stop this from happening.’ (h33) Detailing the different roles and responsibilities within the prison environment with respect to the possession and use of drugs by inmates was thought to provide clarity. This was undertaken by training correctional staff, where staff were told Zero tolerance is a nonsense, it doesn’t exist, it’s not workable, but if we’re all working doing our bit, you’re doing supply reduction, and health services are doing demand reduction, and we’re doing harm reduction on the health promotion side, then we might have an impact. (h38) Zero tolerance drug strategies are supported by elected officials in spite of the lack of resources available to support implementing these strategies I remember (a Premier) saying quite clearly that, ‘we’re going to keep drugs out of prisons’; even though there’s not adequate coverage of opiate treatment programs. (b8)

Investigating the implementation of a needle and syringe program within a correctional setting was delayed in the Australian Capital Territory as correctional and health authorities determine whether their new prison would be able to remain drug free for its first eighteen months of operation. This strategy was seen as providing the opportunity to evaluate the correctional authorities’ fundamental objective, managing a drug free prison The good thing about this evaluation is it is all based on the assumption that really that there can be a drug free prison… it enables us to embed that in the evaluation and then you can look at the indicators of what that would look like. (a3) There were limits to harm reduction interventions such as regulated needle and syringe distribution programs within correctional settings, but other interventions which reduce the harm associated with injecting had been implemented, albeit to different degrees within different jurisdictions They can get themselves onto a Methadone and Suboxone program out in the community and… we’ll provide it to them while they’re in prison and… that will take them out of the risk cycle because there’s no needle and syringe programs there. (h33) Some jurisdictions do not provide detoxification support or drug substitution programs to their inmates We don’t even offer pharmacotherapy up here….So the guys come in off the street with a drug habit and what are we going to do, we just stuff them in… they detox. I: Without assistance? R: Yeah, which is a danger in itself. (d14) There were clear benefits identified for correctional staff in implementing drug substitution programs With the passage of time the correctional officers realise that it makes things easier for them and they know it is easier if people who are not hanging out, they’re not uncomfortable, they’re settled, it’s amazing how things go better actually. (e20) Within some jurisdictions, where condoms or bleach were unavailable or inconsistently implemented, some innovative health promotion activities showing the practical use of resources were being employed. Interventions such as these were not supported by correctional authorities I’ve tried to factor a lot of things through teaching the prisoners how to cut fingers off gloves if they’re going to have sex in prison… and then they stop giving the prisoners gloves. (d14) Innovation in disseminating health promotion interventions was noted I leave the condoms by the scales in the health centre, but they weigh themselves a lot… the ability to actually put them somewhere that’s non-offensive, that’s still safe in terms of operational safety stuff. (d11)

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Bleach 124

Other harm reduction initiatives were being implemented in correctional settings, in ways that acknowledged the sensitivities of the broader context of their implementation The department won’t allow bleach… but putting the right words in the right ears we now have the right cleaning agent… the fact that it could be used to clean fits, you shouldn’t really tell prison officers that. (h33) Introducing a ‘cleaning agent’ within correctional settings has several benefits When a prison officer is… contaminated with blood products or body fluids and they need… (to clean) shoes with something… they should clean it with something that has at least some semblance of virucidal and cleaning properties.… That happened to be the one that we know is the best one for cleaning fits. (h33) Promoting cleaning agents through inmate peer networks was undertaken We have guys here… that have a good recall with the culture out there and can talk to prisoners very effectively and say, ‘Look, we’ve got a new cleaning agent, if you need to clean a fit it’s the one that’ll do the job.’ (h33) This implementation of and support for bleach distribution was not uncomplicated from a security perspective Prisoners can be quite creative at times… they would do things like – if you put the bleach under your fingernails and you’re urine tested, you can use that in your urine and it can affect the urine test results. (e16) While bleach is available in several jurisdictions in one form or other, the actual availability of bleach or other cleaning agents was reported by informants as varied While the word is, ‘bleach is to be made available across the system,’ that doesn’t really occur… its hit and miss with bleach. (g31) The use of bleach as a disinfectant agent within the correctional setting was recognised as an important intervention given the lack of sterile injecting equipment. However, several informants noted their reservations about the intervention The disinfectant solution is not a solution that’s been shown to be effective against hepatitis C. (b4) While bleach in some jurisdictions was introduced using a level of subterfuge, in another jurisdiction instructions on how to clean injecting equipment were included on bleach packets. We have bleach sachets in our prisons which have instructions about how to clean a fit on the back. (g28) This introduction of bleach sachets with instructions occurred as a result of the action of one person without changes to regulation or broad consultation. In a reflection of the lack of strategic or comprehensive response to reducing transmission of blood borne virus, this occurs in a jurisdiction where condoms are not widely available. Providing cleaning messages on these sachets reflects community standards of hepatitis C prevention not being implemented within jurisdictional settings. One informant highlighted and characterised this as a risk of litigation We potentially put ourselves at risk of litigation down the track anyway, because it’s not going to protect everyone from everything. (g28)

Hepatitis C Testing Providing hepatitis C testing for inmates is supported by correctional services. One informant noted this testing was not without risk to the Department We believe it’s in their (inmates) interests to know if they’ve got something… if they know their condition, they can access treatment. The other reason is if you haven’t got it and then you acquire it… it will let you know that you’ve acquired it within prison. (e18) While a significant proportion of the prison population are already infected with hepatitis C, being diagnosed with the infection can be shocking and require responses which reflect best practice within the community Prisoners come up to me and they’re crying because they’ve been notified they’ve got hep C and they’re not given any post-discussion about it and of course they think they’re going to die… I’ve done a lot of counselling sessions just off the cuff. (d14) One issue raised in the development of new policy about hepatitis C within correctional settings was the implementation of standardised pre and post test discussion for inmates (The strategy can) provide some fixable things, like you know training, and pre and post-test discussion for HIV and hepatitis C. (d11) One conflict between health service delivery and corrections policy in several jurisdictions is the confidentiality of the infectious disease status of inmates. For one informant, this issue was described as We’ve got a Public Health Act which says don’t disclose to anybody who doesn’t need to know, and then we’ve got the Crimes (Administration of Sentences) Act that says you must tell the commissioner. (b4) The Western Australian Industrial Relations Commission ruled on the provision of blood borne viral status of inmates to correctional staff which was described by one informant We can’t safeguard the confidentiality of the BBV status of prisoners, (when)… somebody tests positive… to a blood borne virus… there has to be a written notification to the superintendent. (h38) The conflict for health staff with respect to their professions ethical obligations engendered by this process was identified. The issue is further complicated with health staff employed by correctional services, and conflicting obligations between employer and employees. There is a superintendent’s circular, and a health service policy which states that a HIV diagnosis will be reported to the superintendent. There’s a health service policy which tells nurses that they have a duty to lodge BBV status on the central data base… a lot of the nurses go ‘no we won’t because it places us in a professional breach.’ Then you have nursing management going ‘this is the policy, and if you do not uphold the policy of prisons health services you will be likely to receive disciplinary action.’ (h38) The advice for staff was Why do these people want to know this information? They want to know the information so that if they’re exposed to this patient’s body fluids or blood that they want to know whether they’re at risk or not. What’s the right information to put there?’… not ‘positive’ because that engenders fear and discrimination… putting ‘Negative’ achieves absolutely the opposite… it means that the person concerned takes actions that are inappropriate to the risk of the situation… My advice to staff will always be the right answer to put in that box is ‘unknown.’ (h33)

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Given the conflict, informal regulation was the only option seen as available to informants 126

It can only be advice to staff… it’s one of those things you don’t want to put in policy. (h33) A strategy developed by bureaucrats in response to legislative gaps affecting the Needle and Syringe Program was determining the legislative intent, while evading the legislative detail. This approach was implemented in the correctional setting with the regulatory obligation for health staff to inform correctional staff about the blood borne virus status of inmates We came to an agreement that if we worked towards improving infection control measures in prisons, and if we improved how we managed exposures in the prisons, well then yes, they (the union) might come around. (h38) Even with determinations made in regulation about informing correctional authorities of people infected with a blood borne virus, the issue of confidentiality of inmates’ blood borne viral status and correctional obligations still provides ethical challenges for some people in the health sector. This is not resolved, and was reflected by one informant I’ve been in this position for three years now. M dealt with it when he arrived in the position. The person that took over after him dealt with it because again it was raised by the staff. Then when I took over the position, again it was raised with me. Even though it was the same set of people who were aware of the various legislations, they still hadn’t been able to deal with it and process it, so it still creates conflict. (b4)

Providing Education A theme arising in key informant interviews, particularly from one jurisdiction was of inmates changing their behaviour in relation to their environment. This was echoed by an informant who noted that health promotion strategies were being undertaken by inmates to reduce their risk of hepatitis C infection through poor infection control The guys are telling us they’re becoming much smarter with the tattooing. They’ll talk about that they’ll each have their own tattoo gun now, own needle… but we still talk about… surfaces and stuff where there’s still a risk. (e20) The importance of peer education was noted by one informant It’s working with prisoners to see them as the people that deliver some very important health promotion messages in the prison environment, much better than I could do it. (g31) Limits were noted within correctional services of developing and implementing harm reduction initiatives which were enabled by inmates The idea was that we would have this Peer Ed program… and we could channel health promotion stuff with them… ‘ooh, no you’re actually going to empower prisoners’… that was the attitude I got. (h38) Reservations from one jurisdiction about peer education reflected concerns about the risk of the provision of wrong information I put that forward to (corrections) and they didn’t want peer education to happen here… It was said to me that they didn’t want prisoners handing out wrong information to other prisoners. (d14) Another jurisdiction had implemented a peer support program which at the time of the interviews was ‘on hold’ to address concerns of providing incorrect information (Our) prisoner peer support program… is currently on hold at the moment because we’ve reviewed the entire program and basically formalised the process of selecting prisoners, training prisoners. We’ve engaged a training provider to provide them with formal accredited training. (e16)

One informant noted that harm reduction information was disseminated within prisons, and that this information could be made more widely available Women prisoners were saying that we should do a pamphlet for women newly coming in saying, if they manage to get some gear when they first come in, if they’re hanging out, that they shove it up their bum. Because until they have good networks to know where they can get decent gear to use their drugs with, they shouldn’t inject… they’re not stupid, and I don’t think we tap into the knowledge of this group enough. (h38) Other harm reduction initiatives were being implemented. One related to information provision What they do now is an entry program when they first come in… so if you haven’t got hep C this is what you can do to prevent it while you are in jail, if you have got it, this is what your treatment options are. (h38) The timing of how and when information about hepatitis C was provided was an important detail noted by one informant Prisoners who get inducted don’t recall anything they get told because they’re freaking out or they’re coming down or they’re off their face. (e20) Information provision needed to be framed in ways acceptable to correctional authorities. In developing resources seeking to reduce transmission of hepatitis C among inmates, one informant noted We had a bit of a challenge with this one. We had to take a (picture of the) syringe out (of the resource)… it would have caused some confronting issues across (the department), but we still got the same message. (g28) Rather than reduce the impact of the resource, informants stated that excluding specific information about syringes strengthened the resource We got a more powerful message… because they (inmates) all know about needles… what they don’t know about is that all the drug paraphernalia that they use and (cleaning) the bench… it’s the better educational opportunity. (g28) Given the high prevalence of hepatitis C among inmates, providing information about hepatitis C was challenging Quite often I’m greeted with a very disinterested audience… if you can somehow reach them through their own life… I say, ‘How many of you have a missus or kids? And you tell me that you are Hep C positive. What are you going to do to protect them?’ All of a sudden it becomes very, very real. (g31) There were limits of the effectiveness of any health promotion intervention, particularly in reducing hepatitis C transmission in correctional settings, with one informant noting the complexity of behaviour change People in gaol, despite the fact that they’re educated about using clean needles, will still use unclean needles; education campaigns and the provision of services don’t necessarily change the behaviour of people. (b5)

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Toiletries and Haircutting 128

In an environment where the population has a high prevalence of hepatitis C, with less access to health services and a range of unresolved health issues, there are additional exposure opportunities when compared with the broader community The fact that people who have got hep C because they are injecting drug users generally, also have poor oral health… the sharing of toothbrushes leads to a much higher risk factor than it would in the community. (d15) Corrections regulation and the complex environment of security provided specific challenges for the development and implementation of hepatitis C prevention interventions Depending on what level of security an offender is, they may not have access to nail clippers at all because of the potential of what they could do with them. Whereas, other offenders, depending on which area they’re in, can actually buy them as part of the buy-up… So for the areas where nail clippers aren’t available on buy-up… it’s making sure that there’s pairs that are available to be used that are appropriately cleaned in between use. (d11) A gradient of which hepatitis C transmission prevention strategies are more politically acceptable than others within the correctional setting was identified There’s nothing politically sensitive about cleaning nail clippers or hair clippers. It is politically sensitive to allow sterile injecting equipment to be made available. It is politically sensitive for tattooing machines to be made available. (d15) Several informants identified the need for aseptic hairdressing techniques and noted reservations about the implementation of these procedures Within our prisons at the moment, our haircutting procedure’s not quite standardised within the different prisons… Some… prisons are doing a really good job… they’ve got a specialised area and they have a prisoner that’s trained up and knows what he’s doing. (e18) One reason for attention on hairdressing processes within prisons was as a result of hepatitis C transmission concerns occurring in another jurisdiction My understanding is one of the reasons that the haircutting is so good in New South Wales is there was one case in New South Wales where it was shown, or it might’ve been shown, that haircutting was the cause of that problem (hepatitis C transmission). (e18) Guidelines developed for the community about hairdressing and infection control, were reported not to be implemented within correctional services Codes of practice are guidelines regarding hairdressing in the state of South Australia… and for some reason that doesn’t translate into our prisons. (e21)

Needle and Syringe Programs Unregulated needle and syringe distribution occurs within prisons Everyone knows, who works in the prisons, that in the maximum-security areas or the remand areas, there’s a small number of needles servicing perhaps 100 inmates. (g30) There is already a needle exchange happening in… prisons, it just so happens that it’s controlled by the prisoners, it’s highly dangerous, it’s highly unsterile, it’s clandestine, it’s secret, and it’s very very dangerous. (b6)

Informants in two jurisdictions reported informal needle and syringe distribution Needle on the desk and they walk out… they have informal systems where they do the needle exchange. (e20) A number of prisoners told me that staff at prison would discretely hand them a clean syringe and say, ‘I don’t know where this came from’… and I’ve heard it at every prison I’ve been to. (g31) Silence plays an important role with the continued implementation of this strategy I have never put it to any (one)… that I suspect might be involved in that because I don’t want to compromise them. (g31) In a reflection of the availability needles and syringes within the correctional setting, and of inmates taking responsibility for their health, one informant noted an inmate saying “Yeah, I use drugs. Of course I do. And I’ve used them in prison for a long time. But you know what? I’ve never, ever, ever shared. It’s my gear and my gear alone. I have never let anyone else touch it.” (g31) Another informant noted We had a guy… who said no (to hepatitis C treatment. He said) “I’m still a happy user, I’ve got a regular supply, I can’t always guarantee using a new needle so maybe I shouldn’t be going on the hep C treatment program.” I thought 10 out of 10 for honesty. (h38) The use of recreational drugs and injecting, and their link with hepatitis C transmission within correctional settings highlights a fundamental challenge to correctional services It’s really this blinkered mentality of, “We know when injecting drug use goes on but we can’t admit that it does. If we admit that it does, it just shows it’s a failure of our security system… it says to the general public that people are still injecting drugs in jail when they shouldn’t be.” (b4) In terms of introducing a needle and syringe exchange program into correctional settings, the union were seen to play a hard line in spite of the realities The… union is extremely strong and basically their attitude, from what I’m told, is ‘Not over our dead body’ sort of thing, or, ‘Only over our dead body’ basically. We’re trying to get them to understand that prisons are already saturated with needles. There’s no shortage of needles. (h35) The implementation of a correctional needle and syringe program was thought by informants as unlikely to occur given the political imperatives overriding public health I pretty realistically know that no minister is going to sign off on a needle and syringe program in this state… one minister has said, ‘Over my dead body’… no matter what side of the government they come from they’re all arch conservatives. (h33) The pollies are far too willing to respond to public opinion… that’s why we’ll never get needle and syringe programs, because the general public would come down like a ton of bricks… and avoiding contentious issues. (h38) These political realities revealed the limits to what key informants could do in practice From a technical perspective, there’s a great deal of merit in providing needles and syringes… it’s recognising that it’s not something that I actually have control over in that setting… it’s limited by ministerial directive. (d15)

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There were reservations from one corrections informant about needle and syringe programs in prisons as the sole response to hepatitis C transmission in correctional settings 130

I think that these practices that people have identified as being risky, are real ones, but there seems to be an amazing investment in needle and syringe exchange programs as the single solution to this. (b5) Another informant noted the fear of legal intervention could motivate correctional authorities to change practice in relation to needle and syringe distribution programs Administrative decisions made in courts… suggest there’ll be a large financial penalty imposed in relation to someone who seroconverts as a result of not having a clean syringe. If there was a group of people who that had happened to, the risk of that to continue in the future would be enough presumably for governments to change their view. (b5) The major reason noted in each jurisdiction for the lack of support within the corrections service for the development and implementation of a needle and syringe program was the death of a prison officer in New South Wales in 1989 after an assault with a blood filled needle and syringe. The key element in all their safety is the tenth anniversary of the death of a prisoner officer… that’s just ingrained into your custodial psyche. (h33) The impact of this event was seen by one informant as over-ruling any health related evidence The evidence doesn’t seem to be the problem, it really is a deeply embedded issue arising from the death of a prison officer in New South Wales. (b5) The level of trauma this event caused is reflected in the following quote, and reflects the challenge involved in advocating for needle and syringe exchange programs within correctional settings We have an event every year… and the mother of that person …, comes along to our meetings, sheds her tears in this event and prison officers remember. Every year they remember what happened to this person, and he was one of their colleagues and they saw him die and as a result syringes are seen as a weapon. (b5) Similarities were noted between the distribution of condoms, in jurisdictions where they are available, and how a needle and syringe exchange program could operate within a correction setting All adults in gaols can access condoms, but its not illegal to possess a condom, but it is illegal to be caught in the act of sex in gaol… the same could apply if there were needles and syringes, depending on what model they ran with – it wouldn’t be illegal to access, but it would be illegal to be caught using. (h38) Not all informants supported the implementation of a needle and syringe exchange program within correctional settings. Concerns noted political and practical costs I am relatively clear on syringes, that you are going to have such resistance from staff, but the game isn’t worth the candle. And it is hard for me to put my hand on my heart and say the staff are wrong. (h36) There was a strong commitment from some informants for the development and implementation of a needle and syringe program within prisons, even though this may take a substantial amount of time Eventually, if it’s not me, hopefully there’s someone who comes after me, who can eventually chip way… you have the wins over time because you get the runs on the board in other areas first… like Pantene, it won’t happen overnight but it’s going to happen. (d11)

Section 5 – Conclusions The Regulating Hepatitis C: Rights and Duties project identified, documented and reviewed the regulations related to the prevention of hepatitis C transmission within adult correctional settings throughout Australia. Interviews were held with a broad range of informants who described the context and effectiveness of the implementation of these regulations and a regulatory environment has been proposed in which hepatitis C prevention interventions can best be implemented. There is a schism in the cultures affecting the delivery of health care services to inmates. Correctional services and their legislation privilege enforcing security. This is often anomalous to providing what correctional administrators describe as a comparable, to the broader community, standard of health services to inmates. The administration of correctional services in Australia is the responsibility of each of the eight states and territories. Each jurisdiction enforces specific regulatory frameworks within their jurisdiction consisting of primary (Acts) and secondary (Regulations), and a broad range of internal guidelines. Investigating the regulatory framework influencing hepatitis C prevention within correctional settings requires exploring and describing the development and implementation of the correctional legislative framework and its broader context in eight different jurisdictions. While the names, details and stated aims of the frameworks differ, the cultural imperatives of the frameworks are similar: fundamentally, to support and reinforce security. This project assumed that hepatitis C is a health issue in which the expertise to prevent hepatitis C transmission, while not exclusively, lies within the health sector. This required investigating the regulations affecting the delivery of all health services within correctional settings. The project examined government sanctioned reviews of correctional services which had been undertaken over the past 30 years. These reviews are invaluable for providing an insight, particularly for people working outside of correctional settings, to the key issues affecting the delivery of correctional services in Australia including the significant changes to health service delivery to prisoners. While the impact of these reviews has not necessarily changed the core culture or philosophical approach of the organisations, there have been changes to health service provision in correctional settings, albeit improving their access to inmates from a very low base. In an area with different regulatory frameworks among jurisdictions, the Australian Government has taken little leadership or coordination within the sector. This means that different jurisdictions approach the implementation of health services, and hepatitis C prevention initiatives, in different ways. Health authorities are responsible for providing health services to inmates in all jurisdictions with the exception of Western Australia and Victoria. While the model of health services being provided to inmates by health authorities is supported internationally, implementing this model throughout Australia has taken a long time, and occurred in a haphazard and uncoordinated manner. The management of health services by correctional services means that the provision of health services occurs within a framework in which maintaining security takes precedence over individual health care needs. The major national-level regulatory statement describing the operation of correctional services in Australia is the Standard Guidelines for Corrections in Australia. This document, developed by state and territory correctional administrators, provides guidelines rather than enforceable standards. No process exists for assessing the effectiveness of the implementation of these standard guidelines within any jurisdiction, although there are indications that this may occur in the future.

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The Standard Guidelines for Corrections in Australia and individual correctional services state that an equivalent or comparable level of health care should be available in correctional settings as is available to the general community. The World Health Organisation describes health as ‘a complete state of physical, mental and social well-being, and not merely the absence of disease or infirmity.’ This acknowledges the need for a multifaceted approach which includes health promotion and the prevention of disease as fundamental aspects of health service provision. Inmates experience poor health status, and incarceration provides unique opportunities to engage with inmates to improve this. While there is a proposition that inmates have the same level of access to health service provision as those in the community, the primary discussion of health service delivery in correctional settings defaults to that of primary care or clinical treatment. While there is variation in the level and appropriateness of health promotion activity within jurisdictions, there is little evidence that a broader and holistic understanding of health promotion has been adopted by correctional services. The Ottawa Charter for Health Promotion has not been effectively implemented within correctional settings. Health promotion, where it is performed, is often underresourced and undertaken by correctional authorities rather than health services. An increased understanding of inmate health issues internationally; a recognition that inmates have human rights, and that inmates move between corrections and the broader community has provided the rationale for the development of health service provision in correctional settings over the past three decades. Correctional settings were acknowledged by informants as providing an environment in which health status of inmates could be improved. It is a common theme in all jurisdictions that these services are under-resourced. The purported philosophical standard for the delivery of health services is that the services provided to inmates are comparable to a community standard. By way of contrast, the Office of the Inspector of Custodial Services in Western Australia notes that the provision of needs based health services to inmates is more appropriate than that of a community equivalent. This supports reframing inmate health from an intervention which is grudgingly provided to one which responds to inmates’ needs. The National Corrections Drug Strategy 2006-2009 was released in 2008. The strategy provides no clear targets or aims, and does not establish a monitoring process. Although it is clearly recognised by correctional authorities that injecting occurs in prisons, responses to the use of illicit drugs within corrections selectively use the national drug strategic frameworks by focussing on demand and supply reduction strategies. Alcohol and drug issues are seen as security rather than health concerns within correctional settings. This replicates community norms, with supply reduction interventions undertaken by security services, with health services implementing demand reduction and harm reduction interventions. The focus of corrections is on supply reduction. This is done using urinalysis, searching visitors and in some jurisdictions, searching staff and have been described as relatively expensive, poorly evaluated and with possible unintended negative consequences. Correctional strategic responses to harm reduction are often opaque. An example of this occurs in one jurisdiction, where harm reduction strategies are described as enshrining ‘a zero-tolerance approach to drug use within a context of harm minimisation.’ While abstinence at an individual level is one aim of national drug strategies, zero-tolerance at a population level is not supported. For those individuals working within public health sectors, correctional drug strategies are often odd: for example, while supporting the national drug strategic framework, Victoria prisons conceptualise ‘four goals’ for their drug strategy, which then contradict their description of harm minimisation.

Preventing the transmission of hepatitis C within correctional settings is identified within each state, territory and federal hepatitis C strategy developed and implemented by government health authorities. Hepatitis C prevention interventions have been implemented within correctional services across Australia, but this implementation has been haphazard, piecemeal, and has not occurred as a result of good public health practice or strategic commitment to reducing hepatitis C transmission. The significant variation within jurisdictions in what hepatitis C prevention interventions have been implemented has often occurred as a result of individual commitment, unexpected opportunities and individualised interpretation of legislation. A clear conflict in providing a comparable standard of health services within correctional settings exists in relation to hepatitis C prevention interventions. Inmates do not have access to the essential hepatitis C prevention initiative found in the community – regulated needle and syringe programs. Despite this, unregulated needle and syringe distribution occurs within correctional settings. Even though the primary hepatitis C prevention initiative available for the community is not legally available within correctional settings, harm reducing regulatory initiatives have been implemented. These include legislation providing differential penalties in response to detecting illicit drug use by inmates. Regulations such as these reflect the capacity for the development of a security framework to have a clear positive public health impact. The development of drug courts is consistent with harm reduction policy by reducing the numbers of people incarcerated for drug related crime and therefore reducing their exposure to hepatitis C. The arguments for regulating needle and syringe programs within correctional settings are well established, and the hesitation of correctional services in implementing this regulated initiative is not based on evidence. As in the broader community, the regulation of needle and syringe programs within correctional settings does not require correctional authorities to sanction drug injecting. The regulation of needles and syringe distribution recognises that drug injecting occurs, and this injecting is already accepted by correctional authorities as occurring within correctional settings. The introduction of needle and syringe programs in correctional settings is recognised in all jurisdictions as having political and workforce implications which take precedence over good public health practice and the human rights of inmates. The death of a New South Wales prison officer, Geoff Pearce, after an attack with a syringe, was mentioned in interviews with informants in each jurisdiction. His death has fundamentally affected the introduction of the legal distribution of sterile injection equipment within correctional settings in Australia. Hepatitis C testing is available in all Australian jurisdictions, although the capacity for the implementation of the National Hepatitis C Testing Policy within correctional setting is limited. The legislation in the Northern Territory, allowing for the use of force for testing, is an abuse of human rights; the correctional legislation in Tasmania, which specifically omits providing pre test and post test discussion as required in their HIV legislation, clearly contradicts community standards. Confidentiality is recognised within public health as a key issue, particularly in responding to infections in which risk behaviours and the people who participate in these risk behaviours are marginalised from the broader community. Confidentiality in health service provision including hepatitis C test results provides the safety necessary to enable people to access these services. While having hepatitis C testing available for inmates, correctional services in some jurisdictions prescribe that they must be informed of a prisoner with an infectious disease. The rationale for this regulation could be that the identification of such individuals then provides safety for the correctional workforce. As noted earlier, in many jurisdictions the majority of prisoners are infected with hepatitis C. One cornerstone of infection control practice is to assume that everyone is infectious and a fair assumption for correctional authorities would be that all inmates are infected with hepatitis C, and that the correctional workforce needs to protect itself accordingly.

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Imprisonment in and of itself is recognised as a risk factor for hepatitis C infection. Incarcerating people puts them at risk of hepatitis C infection given the high prevalence of hepatitis C within correctional settings, with only sporadic implementation of hepatitis C prevention initiatives. Political support for ‘tough on crime’ interventions, while politically attractive for some, has health implications for inmates and for the community as a whole. This is a key factor for Indigenous communities already experiencing vastly greater incarceration rates and who are often more affected by legislative changes which criminalise street based activity. Improving the health of inmates and of the environment in which they are imprisoned is not supported politically or, generally, bureaucratically. Medicare is not available for inmates, and there was differing knowledge among key informants about access to drugs under the Pharmaceutical Benefits Scheme. While the lack of interest and coverage of health related issues within the primary corrections legislation is a barrier to hepatitis C prevention initiatives, this is exacerbated by the views of the correctional officers unions. Correctional personnel were seen as having the power over which regulations are implemented, and how this implementation occurs. While not necessarily having expertise in planning or delivering health services to inmates, they are often called upon to provide advice on health related matters and have stopped innovative health practice. The Australian Ministerial Advisory Committee on AIDS, Sexual Health and Hepatitis, Hepatitis C Subcommittee guidelines (2008) related to hepatitis C prevention in correctional settings reinforce unions as gatekeepers of public health and hepatitis C prevention in Australian correctional settings. The guidelines note, ‘any needle and syringe exchange trial… considered by Australian states and territories need to be supported by custodial staff‘ (p18). This abdicates responsibility for correctional authorities to lead in providing a ‘comparable’ level of health care to inmates. The resistance of correctional officer unions ignores the significant occupational health risks for officers where the lack of regulation of needle and syringe programs reinforces the high risk of hepatitis C transmission occurring within correctional settings. There are significant differences between jurisdictions with regard to transparency and the level of publicly available information describing the standards applying within their correctional services. Having available information in and of itself does not make for good correctional practice, but it does provide the public with the capacity to know what standards apply within correctional settings and how these standards should be met. The example provided in this report relates to the differences between South Australia, in which limited information is available to the public, compared to Queensland and Western Australia. Both Western Australia and Queensland have histories of culturally dominant and long serving conservative governments which were replaced by governments who undertook reviews of correctional services, and in Western Australia, established transparent processes for reviewing correctional service delivery through the Office of the Inspector of Custodial Services. Knowledge of legislation amongst informants affecting hepatitis C prevention interventions was generally comprehensive. Those individuals with public health responsibilities were cognisant of corrections related legislation. Importantly – and disturbingly – on some occasions, the motivation for this knowledge was to identify how to circumvent legislation in order to provide good public health practice. There were gaps in the knowledge of outside contractors who deliver services within prisons. There was an assumption that there was a need for health staff working within prisons to understand correctional legislation and culture, while no reciprocal need existed for correctional staff to understand health related legislation, professional responsibilities and ethics.

Fundamentally there needs to be a paradigm shift in Australia in the relationship between correctional authorities and health. There is a vast amount of evidence showing the high prevalence of hepatitis C within correctional settings, with significant levels of risk behaviour and hepatitis C transmission. The health of inmates is devalued to the degree that they are collateral damage to the running of good security. Hepatitis C shows that what occurs within correctional settings affects the health of the whole community. Government policy has placed correctional authorities in a position whereby they have become the custodians of many people with hepatitis C but they have not been provided with the resources, nor the knowledge or expertise, to respond effectively to this infection. The evidence of injecting drug use within correctional settings is not controversial with the behaviour acknowledged as occurring by both correctional and health authorities. Correctional authorities are unable to effectively prevent transmission to prisoners who are not (yet) infected with hepatitis C within these high prevalence settings. Correctional legislation which uses a human rights approach provides a context in which the broad range of health services, including hepatitis C prevention can be effectively implemented. This perspective reinforces that imprisonment and the loss of liberty is the sole punishment that the state can impose on a person who has been found guilty of breaking the law. It requires the state generally, and correctional services specifically, to provide an environment that ensures that incarceration is limited to this state sanctioned outcome.

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Appendix 1 Regulations – Informing Best Practice The following tables describe regulations informing the development of a framework supporting a correctional environment in which hepatitis C transmission could best be prevented. The regulations have been separated into different subject areas and identified as either: • Legislation, incorporating acts of parliament • Policy or Guidelines, describing departmental standards • Strategies, describing departmental intent. Several examples of regulation have been included which represent poor public policy in reducing transmission of hepatitis C within correctional settings, but nonetheless were used to inform the development of a supportive regulatory environment. Data in the tables are based on the audit of legislation undertaken by this project, and supported by interviews with key informants. Given the scope of the kinds of regulations affecting hepatitis C within correctional settings, these tables only highlight specific regulatory documents, rather than each regulation identified by the project. Other regulatory forces such as ‘tough on crime’ policies or policies locating health service provision in Queensland from Corrections to the Health department are not included.

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National Policy Statements 138

Title

Where

Type

Description

Gap

National Hepatitis C Strategy

National

Strategy

People in correctional settings are a priority population

Implementation

National Corrections Drug Strategy 2006-09

National

Strategy

Strategic response to drugs in prisons

Inconsistent alignment with National Drug Strategy; no evaluation

Standard Guidelines for Corrections in Australia

National

Guidelines

Provides for inmate health services comparable to those found in the community

Culture and legislation does not support this

Regulation of Infection Control in the Body Art in Australia and NZ

National

Guideline

Details tattooing/piercing infection control processes

Implementation

Hepatitis C Prevention, Treatment and Care: Guidelines for Australian Custodial Settings

National

Guideline

Details hepatitis C prevention in prison

Implementation

National Hepatitis C Testing Policy

National

Policy

Details hepatitis C testing processes

Implementation

Gap

Human Rights Approach Title

Where

Type

Description

ACT Human Rights Act

ACT

Legislation

Provides human rights for inmates

Corrections Management Act

ACT

Legislation

Human rights are regulated in correctional legislation

Implementation

Charter of Human Rights, S22

Vic

Legislation

Provides human rights for inmates

Implementation

Corrections Management (Human Rights) Policy

ACT

Policy

Human rights of inmates and staff are protected

Restrictions apply in ‘interests of good order’

Duty of Care, Operations Procedures Manual

NSW

Policy

Describes duty of care

Practical implementation

Title

Where

Type

Description

Gap

Inspector of Custodial Services Act

WA

Legislation

Independent inspection of correctional services

Corrections Management Act,S14

ACT

Legislation

Publicly available policies and operating procedures

Correctional Services Act, S10

SA

Legislation

Correctional Services Advisory Council

No public reporting

Corrective Services Act, Part 8

Q

Legislation

Chief Inspector

No public reporting

Transparency

Access to Health Services – General Title

Where

Type

Description

Gap

Corrections Management Act, S53

ACT

Legislation

Community standards of health care

Implementation

Corrections Management Act, S21

ACT

Legislation

Health services appoint doctor to correctional centres.

Corrections to refuse doctor direction on security grounds

Corrections Management Act, S12

ACT

Legislation

Access to suitable health services/facilities for inmates

Health Services Act (NSW)

NSW

Legislation

Establishes Justice Health as a health authority

Crimes (Administration of Sentences) Act, S236

NSW

Legislation

Details role of Justice Health

Crimes (Administration of Sentences) Act, S72A

NSW

Legislation

Permits access to health care

Clinical provision only, no health promotion

Prisons (Correctional Services) Act S27/28

NT

Legislation

Medical Practitioner appointed to prisons

Clinical provision only, no health promotion;

Prisons (Correctional Services) Act , S71

NT

Legislation

Inmate access to a visiting medical officer

No proactive duty of care to inmates

Corrective Services Act, S266

Q

Legislation

Medical welfare programs for inmates established by corrections

Health programs should be developed by people with appropriate skills

Corrective Services Act, S283/S284

Q

Legislation

At least one doctor for each prison; Doctor ‘to perform what the doctor is qualified to perform.’

Clinical provision only, no health promotion; could include body searches under S266

Correctional Services Act, S23

SA

Legislation

Annual medical assessment to inmates with a 6 month sentence or more

Clinical provision only, no health promotion; omits services to remand prisoners

Corrections Act 1997, S29 (1) (f)

SA

Legislation

Access to medical care and treatment

Contradicts S23 of the Act

Corrections Act S4

Tas

Legislation

Inmates have the rights as citizens and access to preserve their health

No proactive duty of care to inmates

Corrections Regulation, S8

Tas

Legislation

Quarterly inspection of prisons by medical officer

Clinical provision only, no health promotion

Corrections Act 1986, S47 (f)

Vic

Legislation

Access to ‘reasonable medical care and treatment necessary for the preservation of health’

Contradicts Human Rights Act

Prisons Act 1981, S95A(1)

WA

Legislation

Corrections to provide medical care and treatment

Clinical provision only, no health promotion

Alcohol and Other Drug Programs

ACT

Policy

Corrections responsible for alcohol and drug services

Reflects conflict between health and security

Corrections Management ACT (Medical Treatment) Policy 2007

Policy

Community standards of health care and support for health promotion

Health and Medical Services

Policy

Provides for comprehensive health care

Q

Clinical provision only, no health promotion

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Access to Health Services – Harm Reduction 140

Title

Where

Type

Description

Gap

Corrections Management Act, S21

ACT

Legislation

Doctor to prevent transmission of infectious diseases

Means of prevention not available

Crimes (Administration of Sentences) Act, S236A

NSW

Legislation

Justice Health to prevent infectious diseases transmission

Means of prevention not available

Corrective Services Reg, S20

Q

Legislation

Prohibition of syringes

Community standards not operative

Correctional Services Reg, S9

SA

Legislation

Syringes prohibited

Community standard not operating

Correctional Services Reg, SA S21

Legislation

Differential drug use penalties

Urinalysis is not a community health standard

Adult Corrections Health ACT Services Plan 2008 – 2012

Policy

Details health services Initial evaluation of success including harm minimisation of drug free prison before decision on needle and syringe program

Urinalysis in Correctional Centres

NSW

Policy

Differential drug use penalties

Urinalysis is not a community health standard

Inmate Services and Programs Overview

NSW

Policy

Drug and alcohol services to be consistent with harm minimisation policies

Harm minimisation policies include access to sterile injecting

HIV-AIDS-Hepatitis

NSW

Policy

Management of people with HIV

Conflict between HIV testing processes and legislation. Confidentiality is unclear

Methadone/ Buprenorphine ProgramsOTP

NSW

Policy

Access to drug substitution

Selected correctional settings/subject to guidelines

Q Corrective Services 2006 Drugs Strategy

Q

Policy

Differential drug use penalties

Q Corrective Services 2006 Drugs Strategy

Q

Policy

Access to bleach

Methadone Treatment

Q

Policy

Drugs substitution available

Clinical and Operational Policy and Procedures – Opioid Substitution

Vic

Policy

Drug substitution program

Prison Drug Action Plans

Vic

Policy

Specific plans for prisons

Plans are not publicly available

Corrections Victoria Sentence Management Manual

Vic

Policy

Provision of harm minimisation programs in prisons

Does not support the means of disease transmission prevention

Policy Directive 12

WA

Policy

Culturally appropriate health education and promotion specific to a prisoner’s medical condition is available

A person needs to be affected by a medical condition before health promotion is provided

Dependent on available funding

Access to Health Services – Hepatitis C Testing Title

Where

Type

Description

Gap

Prisons (Correctional Services) Act S 75

NT

Legislation

Mandatory testing

Use of force allowed for testing inmates

Correctional Services Act, S37AA

SA

Legislation

Permission to blood test prisoners for drugs

Informed consent not available to inmates; community standards not operating

Correctional Services Regulations, S38

SA

Legislation

Inmates can be directed to undergo testing to prevent hepatitis C transmission

Community standard of confidentiality and infection control not operating

Corrections Act, S29

Vic

Legislation

Inmates must submit to medical tests

Consistency with Human Rights Act

Corrections Act 1997, S30

Tas

Legislation

Testing available

Specific exemption of department from the HIV/ AIDS Preventive Measures Act

Prison Act 1981, Section 95D

WA

Legislation

Provision of medical reports Inconsistent with health to Chief Executive Officer policy on request

Corrections Management (Infectious Diseases) Procedure 2007

ACT

Policy

Notification of inmates with an infection to correctional authorities

Inconsistent with health policy

Communication Protocols for QSC and Queensland Health Staff

Q

Policy

Health information remains confidential

Lack of clarity of where information can be provided in broad terms

Standards for the Management of Women Prisoners, Health and Wellbeing

Vic

Policy

Medical screening with voluntary testing available

Health Services Policy 9.2

WA

Policy

Access to hepatitis C testing within 14-21 days of reception with counselling

Health Service Policy 9.5

WA

Policy

Hepatitis C testing available

Testing offered at admission – conflicts with Health Services Policy 9.2. Risk categories poorly described

141

Access to Health Services – Hepatitis C Prevention 142

Title

Where

Type

Description

Gap

Condoms and Dental Dams

NSW

Policy

Provides for condoms and dental dams

NSW Operations Procedures Manual

NSW

Policy

Provides for condoms and dental dams

Infection Control

Q

Policy

Assumption of standard infection control

Directors Instruction No 4.4 – Hygiene

Vic

Policy

Provides inmates with health and medical services, and a basic hygiene kit which includes toothbrush and razor.

Directors Instruction 2.15

Vic

Policy

Provides for infection control; peer education

Equivocal statement about reducing disease transmission ‘as far as possible within the existing policy framework’

Director General Rules 09

WA

Policy

Provides for condoms and dental dams

Provision occurs at discretion of prison superintendant

Policy Directive 19

WA

Policy

Prisoners access toothbrushes and razors

Health Service Policy 9.1.2

WA

Policy

Sharps containers are available

Lack of sterile injecting equipment or condoms and dental dams

Appendix 2 – Hepatitis C: Civil Law Proceedings Using the Common Law as a Regulator Hepatitis C: Civil Law Proceedings Using the Common Law as a Regulator has been authored by Professor Ian Malkin, Law School, University of Melbourne. Professor Malkin is one of the Principal Investigators on the Regulating Hepatitis C: Rights and Duties project. The threat of litigation was one form of common law legal action described by several informants as being potentially effective legal regulation. For example, the fear of being sued for having acted carelessly – or negligently – in the tort of negligence is a significant means by which compliance with certain standards of behaviour can arguably be effected. As with statutes and regulations made by the Executive, civil proceedings in which common law actions are instituted and from which judicial decisions are made can have a regulatory effect. This can occur when cases decided by the courts have precedential effect, such that courts lower in the judicial hierarchy must adhere to the previous decision’s main principles. In this way, judicial decisions not only resolve disputes between the parties, but can also have effects on the community beyond those parties that are the subject of the immediate dispute. While not every decision will necessarily have ‘precedential’ value, managers and Government are likely to turn to non-precedential cases as well to assess risk and avoid future potential findings of liability. As with legislation, due to our constitutional framework, judge-made law or case law can come from all eight jurisdictions. Issues often arise regarding the weight to be attached in one jurisdiction with respect to an authority emanating from a different one. Importantly, a High Court of Australia decision will be binding throughout the country, except where the decision involves the interpretation of a statute which has terms and force peculiar to the jurisdiction from which the dispute arose. Relatively recently, the value to be placed on the decision of one state court’s decision by another state court has been considered somewhat contentious by some commentators and judges. It should be noted that as a regulator, the common law or case law as a source of law is not as comprehensive as legislation, as the court that decides the case that produced what could be characterised as a precedent can only respond to and address the precise legal issue or matter put before it. It can, of course, address matters beyond what it is, strictly speaking, being asked to decide. These comments can indeed be of interest to policy makers. Further, the decision can have a potential effect on similar bodies’ future practices in a tangential way. Unlike statutory regulation, case law is reactive: the affected party needs to bring their complaint or matter to court. Therefore, unlike statutory law, it is somewhat ad hoc or haphazard in the way in which it develops principles and evolves. Even High Court decisions can be overridden by legislation, unless the legislation is unconstitutional. If there is a legislative will to do so, a new statute – or even one provision in an Act – can abolish hundred page judgments from the High Court of Australia.

Cases and Statutory Interpretation Judicial decisions not only create actions and principles under which aggrieved individuals can sue (as modified by statute), they also frequently interpret legislation. For example, if someone is allegedly in violation of an act’s or regulation’s provision, the case could go to court. In the course of resolving the dispute, the court would be obliged to apply and interpret the provision. The interpretation becomes part of the common law, and the provision — as interpreted — has to then be applied in future disputes in light of the judicial interpretation. A court lower in the judicial hierarchy than the court interpreting the provision is bound by the provision’s ‘new meaning.’ However, if the judicial interpretation is at odds with the legislature’s intention, it is likely the Act or Regulation will be amended, overriding the judicial interpretation (although this is not usually done retrospectively).

143

Actions for Damages in the Tort of Negligence 144

The law of torts is concerned with the protection of personal, property, and economic interests. It allocates losses primarily by requiring the person who wrongfully invades a legally protected interest to make monetary compensation to the person harmed. A Tort claim or private civil action essentially involves an aggrieved person instituting proceedings and seeking a remedy in damages. Most commonly, the action would be brought in negligence, revolving around the alleged carelessness of the defendant. For example, could a client of a tattooist bring an action for harm she or he has suffered, blaming the tattooist for acting unreasonably? The allegation of a failure or ‘wrongful’ act could involve the noncompliance with health care regulations or not using clean needles, such that the claimant contracted hepatitis C. The person with the infection must be able to prove on a balance of probabilities that her or his harm was caused by the defendant’s carelessness, as the defendant did not use reasonable care. More controversial cases might arise in the context of prisons, where inmates contract hepatitis C after the use of unclean needles, where the prison custodians knew that illegal drug use had been occurring in their institutions, yet they resisted providing preventative measures that could have effectively prevented this harm. There is a wide variety of rationales for instituting civil proceedings. The one that is cited most frequently involves the desire for damages, or compensation, to place the injured person back in the position she or he was in prior to the commission of the tort. While compensation often tends to be a primary consideration, tort law and the institution of civil proceedings are said to have other functions; further, there are several (sometimes conflicting) theories about its value or role in society. Aside from potentially providing compensation, additional purported aims of tort include • Appeasement, corrective justice and empowerment • Deterrence and punishment • Accident prevention • Educative role (ombudsman’s role), in raising standards and modifying behaviour. Only some of these objectives might be satisfied in a given claim. In fact, some commentators dispute whether all these aims are indeed true objectives of tort. Some aims are contested by scholars who believe that it is not possible within the tort relationship to both compensate a plaintiff and properly deter the defendant by the payment of a single sum. In the present context, involving the types of defendants potentially at issue in the circumstances discussed in this report, the rationale that a civil law suit based on negligence principles could produce higher standards of behaviour is of significance. So, too, possible deterrence and punishment could be well served by the institution of civil proceedings based on negligence. Arguably, even those defendants who successfully defend claims may behave differently as a direct consequence of having to defend these actions. Even the threat of litigation could have a regulatory effect. While tort has traditionally been seen to be the domain of the courts, in recent years it has become very much the concern of the legislature. During 2002-2003, all Australian jurisdictions changed many significant aspects of tort doctrine by enacting a large number of statutory provisions. In doing so, these legislative provisions direct courts to varying degrees with respect to what they may and may not consider when deciding cases. While every jurisdiction enacted statutes to decrease liability claims, some are more draconian than others in their effect: for example, at almost every juncture the New South Wales legislature’s Civil Liability Act 2002 (NSW) makes it much more difficult to litigate successfully when compared to the equivalent Victorian statute, the Wrongs Act 1958 (Vic).

Many (but not all) of these provisions are either derived from, or connected to, the Review of the Law of Negligence (Cth Treasury) (Ipp AJA, Chair, 2002), at http://revofneg.treasury.gov.au. A number of the statutory changes are based on the Ipp Panel’s concern that personal injury law should now have several additional aims, including: • Encouraging personal responsibility • Reducing the community’s ‘culture of blame’ • Reigning in tort awards • Making insurance affordable.

Elements in a Negligence Action The elements that must be proven by a plaintiff to succeed in a common law negligence civil action are: • T  he defendant owes the plaintiff a duty to take care: this can often be readily established (e.g. a driver to a passenger in most circumstances); however, sometimes doing so can be difficult (e.g. mother to foetus) • T  he defendant’s conduct breaches the duty owed to the plaintiff, by not satisfying the standard of care expected of the reasonable defendant in the circumstances • T  he breach causes harm that is legally recognised and is a reasonably foreseeable type of harm that is not too remote • No defence applies (if contributory negligence applies, it reduces damages). It allows a plaintiff to bring legal proceedings against a defendant without proof of an intention to cause harm: mere carelessness (albeit legally established carelessness and not simply errors of judgment, for example) suffices.

Damage ‘Damage is the gist of a negligence action’: the law requires that the plaintiff suffer actual damage for an action in negligence to be available. To be actionable, proof of a minimum amount of damage is required. This is encapsulated in the maxim, de minimis non curat lex (the law does not concern itself with little things). Because damage is the gist of negligence, the cause of action is not complete until the harm is present. Therefore, the action cannot be instituted in the abstract, where a plaintiff might argue that she or he will, in future, suffer harm if certain measures are not introduced. Similarly, the fear of suffering harm is not compensable. Duty of care In the common law tort of negligence, the defendant does not owe a legal duty of care to the world at large. The first step in determining whether certain behaviour amounts to fulfilling the requirements of the tort of negligence is to ascertain whether the defendant owes the plaintiff a duty to take reasonable care for the safety of the plaintiff’s interests. The duty of care is ‘the recognition of a legal relationship between parties indicating that one has obligations to take care with respect to the other.’ This relationship arises even though the parties are strangers to each other. A number of established categories of duty exist. They include relationships between manufacturer and consumer, road users, employer and employee, school and pupil, doctor and patient. With respect to these types of relationship, the existence of a legal duty of care between plaintiff and defendant is usually not disputed. However, even among these established categories of duty, there may be some uncertainty as to the precise boundaries.

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In other situations, a more thorough enquiry into the existence of duty may be required. Conceptually, these ‘hard’ cases can involve a particular type of defendant, a particular type of conduct displayed by the defendant, or even a particular type of harm suffered by the plaintiff. In practice, a degree of overlap between these negligence situations is inevitable. The starting point for anyone considering a claim in the tort of negligence is to ascertain whether a relevant established category of duty of care exists. If not, the inquiry becomes one of determining whether the principles which have encouraged courts in the past to establish new categories can be invoked in the instant case. As a rough indication, if a person sustains bodily injury or property damage as a result of a direct impact from the positive act of another, establishing a duty of care on the person who caused the impact will usually be uncontroversial. While this element is crucial, and difficult to establish in many novel circumstances, in contexts involving custodial settings, the provision of health care services such as needle and syringe exchanges, and tattooing, this element should be able to be relatively readily established. However, this has become somewhat more difficult since around 2002-2003 (the date differs from jurisdiction to jurisdiction): in general terms, new legislative provisions enacted in response to the purported ‘liability insurance crisis’ made it problematic to sue and recover for negligence. For example, where the harm suffered consists of psychiatric injury, or when it flows from a ‘pure omission,’ the task of proving the existence of a duty of care can be burdensome. Courts and commentators frequently debate how to identify the principles which determine the existence of a duty of care in novel or contentious circumstances. Arguably, they should reflect prevailing social values. In Donoghue v Stevenson, Lord Atkin stressed the importance of the limiting concept of ‘foreseeability,’ stating that it would be unfair to impose liability upon the defendant if persons in the position of the defendant were not able generally to foresee consequences of the kind that occurred to this class of persons. However, it has often been emphasised that foreseeability is a wide concept. This is especially so in cases involving the infliction of psychiatric injury and pure economic loss. With rapidly expanding scientific knowledge, improved understanding of how accidents occur and how they can be avoided and correspondingly advanced human ability to think of anything as possible, reasonable foreseeability has come to be widely regarded as an undemanding test for the duty of care. Over many years, courts have searched for a ‘control device’ to place a rein on what was a rapidly expanding tort. Various approaches considering how to do so have been suggested, introduced and refuted. Presently, all members of the High Court of Australia have adopted a multi-faceted or flexible approach under the title ‘salient features.’ This approach has not always attracted the unreserved support of all members of the High Court. For example, when he was on the High Court, Kirby J voiced doubts about this approach, describing it as a ‘cornucopia of verbal riches.’ It should be noted that not all salient features found (or missing) in a particular case should necessarily be accorded equal weight. It is a ‘balancing act.’ Several examples from the case law illustrate the kinds of salient features that are of concern to the court. These include the following: • Plaintiff’s vulnerability (inability to protect herself/himself) • Defendant’s assumption of responsibility • Defendant’s knowledge/awareness of risk or likelihood of harm to the plaintiff • Defendant’s control over the situation • Potential indeterminacy of the class of persons affected by the defendant’s conduct • Effect on the defendant’s autonomy

• Defensive practices that could result • Diversion of resources that could result • Negative effect on the coherence of the law if a duty of care were found. Although the High Court has, in some cases, denied the importance of public policy considerations in its deliberations over duty, it appears that courts must at least incorporate into decision-making policies inherent within statutes and established common law doctrines. Statutory authorities are of particular relevance to this report; they are treated by the common law tort of negligence as ‘special’ in a number of ways. The most important way in which they are special is that they are established by legislation. Legislation overrides the common law and, thus, courts will be wary about imposing liability too readily by determining the existence of a common law duty of care in this context. The court will be concerned to ensure that liability is not inconsistent with the terms of the statute itself. When the defendant is a local authority, statutory body or the government, and the claimant argues that there is a duty on the defendant to exercise a statutory power that has not been exercised, or in circumstances where the complaint involves the way in which resources are deployed, establishing the duty of care will be difficult. Aside from problems using common law doctrine to argue the existence of this duty, legislatures throughout the country enacted provisions (noted above) which must be applied in cases of negligence brought against statutory authorities. These provisions, especially in jurisdictions like New South Wales, have a serious negative effect on the courts’ ability to hold public authorities liable in negligence.

Breach of the duty to take care: standard of care expected of the reasonable person The second main element of the tort of negligence involves the standard of care and breach of the duty. Owing someone a duty of care is not sufficient to establish liability. Legal liability attaches only to the breach of that duty when it causes harm that is not too remote. This involves an examination of the standards of behaviour that are acceptable or unacceptable (unreasonable) when a defendant goes about its/her/his business or embarks on a course of conduct. This element involves the discharge of the duty. In reality, most cases turn on determining whether or not the defendant’s conduct satisfied the standard of care that a ‘reasonable person’ would have exercised in the circumstances. In this way, the civil action for damages in negligence acts as a regulator, as a risk management device. Doing one’s best is not (necessarily) good enough. In every case, the plaintiff must prove that (i) what the reasonable person in the circumstances would have done that the defendant did not do or (ii) what the defendant did that the reasonable person would not have done. If the defendant falls short of that standard, no matter by how much or how little, a breach occurs. According to the case of Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 Negligence is (i) the omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or (ii) doing something which a prudent and reasonable person would not do. At common law, the way in which courts determine the standard of care in any give situation is governed by Justice Mason’s decision in the leading High Court of Australia case, Wyong Shire Council v Shirt (1980) 146 CLR 40. The first matter that must be established is that the risk of injury was foreseeable to the reasonable person. If this is satisfied, the court must consider the so-called ‘negligence calculus.’ That is, the court must consider all of the factors which would influence a reasonable person in determining whether or not to take precautions to avoid the risk of injury manifesting itself.

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Taking these factors into account, the court must decide what precautions should be taken or ought to have been taken by the person in the position of the defendant. This will depend upon the status of the defendant as either the ‘ordinary person’ or as someone of skill or under a relevant impairment. At common law, these factors include the probability of the risk materialising, the gravity of the harm if it were to materialise, the practicability of precautions that ought to have been taken and the social utility (sometimes referred to as ‘justifiability’) of the defendant’s conduct. Justice Mason’s judgment in Wyong has been cited hundreds of times, as the basis on which breach determinations are made. Even when it is not explicitly cited, the rationale and logic of his approach is implicit in determinations of breach and the standard of care. As was noted earlier, as one of the responses to the ‘insurance crisis’ in 2002-2003, state legislatures intervened in the common law, prescribing the way in which courts must resolve personal injury cases. Therefore, the framework for discussion of standard of care / breach has now been set out by the legislature (in most cases). For example, the Wrongs Act 1958 (Vic) Part X, like similar statutes in all jurisdictions except the Northern Territory, reforms certain aspects of the common law of negligence. Part X of the Wrongs Act 1958 (Vic) explicitly states the kinds of context that are included and excluded from its purview. Like the statutes in most other jurisdictions, the Wrongs Act 1958 (Vic) changed one aspect of Justice Mason’s decision in Wyong but mirrored others. A common law, Justice Mason stated that a foreseeable risk is one that is ‘not far-fetched or fanciful.’ The Acts now require the risk to be ‘not insignificant’: for example, Wrongs Act 1958 (Vic) s 48(1). This change has not had, and is unlikely to have, a great impact. Once the plaintiff satisfies this prerequisite or preliminary hurdle, the Act’s provisions requires the court to consider factors that are roughly equivalent to the common law. That is, it must consider all of the factors which would influence a reasonable person in determining whether or not to take precautions to avoid the risk of injury manifesting itself: Wrongs Act 1958 (Vic) s 48(2). In this way, the Act goes on to address standard of care requirements, noted previously: the probability that the harm would occur if care were not taken, the likely seriousness of the harm should it materialise, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm.

The reasonable person: professionals and persons of skill The standard of care expected of the defendant is objective. As was noted above, in the usual case, the conduct of the defendant is compared to that of the ordinary, reasonably prudent person: what would she or he have done (if anything) to avoid the risk of injury to another? However, some characteristics or attributes of particular classes of defendant are taken into account in some special situations. A classic case in point is that of professionals acting in a professional capacity. This may be of particular significance to the contexts considered in this report on hepatitis C, with respect to health care providers (such as needle and syringe exchanges), tattooists and prisons. For many years, there had been judicial and academic controversy about the basis on which doctors’ allegedly wrongful conduct was to be judged. Should the doctor be able to defend a claim by saying she or he did what others in her or his profession would have done? Or, rather, should the court maintain the right to make that determination – ultimately a question of ‘reasonableness’? Arguably, the practice of a profession such as medicine presents extra problems for a court, because the judge and/or jury will not be experts in the field of the professional, and will be required to rely upon expert evidence in order to determine what the defendant should have done or not done. For example, when determining whether there was negligence in treating a patient with cancer, the court requires evidence of the appropriate types of alternative treatments, such as chemotherapy, radiation and surgery.

English courts relied quite heavily upon the evidence of medical professionals when determining proper levels of skill and care. The argument was that, under the so-called ‘Bolam test,’ the courts left it to the profession to determine the standard of skill and care required. The defendant would not be negligent if there was a responsible body of medical opinion whose opinion was that the conduct of the defendant was proper. The courts would not substitute their own opinions of what was proper. In Australia, the use to be made of expert evidence was ‘settled’ at common law in the High Court of Australia case, Rogers v Whitaker (1992) 175 CLR 479 where the Court held that: [T]he standard of care to be observed by a person with some special skill… is that of the ordinary skilled person exercising and professing to have that special skill… But that standard is not determined solely or even primarily by reference to the practice supported by a responsible body of opinion in the relevant profession or trade… While evidence of acceptable medical practice is a useful guide, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life. In a later High Court case, Naxakis v Western General Hospital (1999) 197 CLR 269, it was made clear that the Rogers principle extended to cover diagnosis and treatment. As was noted previously, a variety of interventions into the common law have been implemented by Australian legislatures. For example, in Victoria, in the case of persons who have ‘particular skills,’ the Wrongs Act 1958 (Vic) s 58 provides that such persons are to be measured against the standard of what could reasonably be expected of persons possessing the particular skill at the time of the alleged negligence. This provision does not equate skill with conformity to regular practice. Rather, it determines the standard as being what could reasonably be expected of persons of skill. The court must determine what could reasonably be expected of such persons. In general terms, the conduct will be excused if it complies with peer professional opinion, ‘unless unreasonable’ (Victoria) or ‘unless irrational’ (several other jurisdictions). That practice need not be universally accepted to be widely accepted, and justifiably relied upon. It should be noted that, in general terms, the provisions differ among jurisdictions, and are more detailed and nuanced than what is outlined here. It should further be noted that peer professional opinion does not offer this type of protection to professionals where they are providing information, advice or warnings about a professional service. In these circumstances, the Rogers common law principle applies. The statute establishing New South Wales’ medically supervised injecting facility exempts from drug prohibition legislation conduct on the premises that would otherwise be considered criminal. It also protects persons working at the facility from any civil liability. If something were to go wrong as a result of a worker’s conduct, that person would not be civilly liable, as she or he have been granted a legislative immunity from civil suit, unless the alleged carelessness is determined to be gross.

Consequences of a breach finding Finding a breach of the duty of care and the establishment of the relevant standard of care are tied closely to the facts of the immediate case. For example, just because liability in one case might be found if no sharps disposal bins are provided (Lyons v Commissioner for Housing for the Australian Capital Territory [2004] ACTSC 126), this does not mean there will necessarily be a finding of liability in another case where no bins are provided. The court, as fact-finder, makes an assessment of the reasonableness of the defendant’s conduct in the circumstances of the case. However, similarly placed defendants who have an interest in the findings of the earlier case, may nevertheless adjust their behaviour because of what the court decided. In a sense, they could be ‘regulated’ by the civil litigation based on the tort claim and the previously decided case, despite the fact it is not, strictly speaking, binding, because they fear potential liability and the consequent payment of damages awards.

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Cause harm that is not too remote To establish the defendant’s liability in negligence, the defendant must have breached her or his or its duty to take care and, in doing so, have caused damage to the plaintiff that is not too remote a consequence of the breach. Legislation now provides a general framework within which the causation inquiry must be determined (except in the Northern Territory). The initial test used to establish causation is that of a causal necessity: this counter-factual test is intended to determine whether or not the damage would have been sustained without the defendant’s breach. The court asks, did the defendant’s breach ‘make a difference,’ i.e. was it a ‘necessary condition’ of the occurrence of the harm? It is well-recognised that this test has its limitations: sometimes it does not provide a sensible result in a range of instances, including those of evidential uncertainty and of causal over-determination. Several common law cases as well as the civil liability Acts contemplate and address these types of problematic circumstances. Establishing ‘factual causation’ does not suffice to establish causation for the purposes of attributing legal responsibility in the tort of negligence. In accordance with the statutory framework (reflecting the essence of the common law approach), the court must ask itself policy questions: whether or not and why responsibility for the harm should be imposed on the negligent party, and whether it is appropriate for the scope of the defendant’s liability to extend to responsibility for this harm. In determining whether or not a consequence is within the scope of liability, the court must consider whether there are any new intervening acts (novus actus interveniens) that relieve the defendant of responsibility by breaking the link between the breach and harm. The scope of liability provision also embraces ‘remoteness of harm’ considerations: to be held responsible, the defendant must foresee ‘harm of the same kind’ as that suffered by the plaintiff. That said, the defendant need not have foreseen the extent of the harm to be held liable, nor the precise manner in which it occurred; further, the defendant has to ‘take the plaintiff as found’ with her or his physical and psychological constitutions (called the ‘egg shell skull’). It should be noted that cases on point are often strongly contested.

Defences Defences must be pleaded by the defendant. If successful, they negate or reduce the defendant’s liability to the plaintiff. Contributory negligence is the failure of the plaintiff to take reasonable care for her or his own safety or interests. It includes the failure to anticipate the possible negligence of others. The defendant must prove that despite the risk of injury, the plaintiff failed to take reasonable care to herself or himself and that this failure caused damage to the plaintiff (at least in part). Provided there is a causal connection with the harm, contributory negligence leads to a reduction in the damages entitlement. Voluntary assumption of risk (volenti non fit injuria) is a complete defence. At common law, this defence has three elements, all of which have to be proven by the defendant on a balance of probabilities: the plaintiff knew of the facts constituting the danger or risk; appreciated (or subjectively understood) the danger or risk inherent in the fact situation; and the plaintiff freely and willingly encountered the danger or risk.

The effect of illegal activity differs across different jurisdictions as a result of the legislative changes to common law doctrine introduced in 2002-2003. The most moderate approach is that of Victoria, where the Wrongs Act 1958 (Vic) ss 14F, 14G states that the plaintiff’s illegality must be considered in assessing the standard of care owed to the plaintiff. It does not require the court to decide the matter in a particular way, thus preserving judicial discretion. By way of contrast, for example, the New South Wales Civil Liability Act 2002 (NSW) contains very strict provisions concerning illegality, so that courts are required to respond in particular ways, which generally relieves the defendant from responsibility. This is of particular concern and will have a great impact on any purported claims that could arise in the prisons context, where inmates contract hepatitis C as a result of injecting drugs using an unclean needle and the prison knows illegal and unsafe drug use takes place.

Damages assessment Once the plaintiff has established liability, that is, all the elements that have to be proven in her or his negligence cause of action, one of the most significant remaining issues facing the court (or jury) is assessing the size of the damages that will be awarded to the plaintiff. A fundamental principle underlying damages assessment at common law is restitutio in integrum: to restore the plaintiff to her or his position before the tort. This lump sum award is a once-and-for-all-time assessment, in which moderation and fairness are hallmarks of the assessment (according to Sharman v Evans (1977) 138 CLR 563). The courts further state that they cannot award ‘perfect compensation.’ Whenever damages are assessed, in essence, the fact-finder considers the following: • Who was this injured person before the tort? (job, interests etc) • W  ho would this injured person have been in the future, had she or he not been injured by the defendant’s tort? (future job, interests etc) • W  ho is this injured person now (post-tort)? (i.e. as at the date of trial: what is her or his job, capabilities etc) • W  ho will this injured person plaintiff be in the future? (i.e. what sort of job will she or he have, and what are her or his future capabilities?) The size of the damages award is not based on the degree of the defendant’s carelessness (unless there was contributory negligence or more than one wrongdoer); the amount of compensation awarded is determined by who the plaintiff was, is and will be. The tort destroys or diminishes an existing capacity. These are compensated by having regard to the plaintiff’s lost future earning capacity, which is the sum the plaintiff might have earned (arithmetic calculation); the needs that have been created would not otherwise exist, such as medical care (past and future) and special equipment. The tort also produces non-economic or non-pecuniary loss, such as physical pain and suffering, which embraces actual physical pain, loss of amenities or loss of enjoyment of life and, where relevant, loss of expectation of life. These losses are not readily susceptible to monetary assessment; they are difficult to evaluate as there is no associated market value for such losses.

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The Negligence Review Panel (Ipp report, 2002) concluded that the full compensation principle was not ‘sacrosanct.’ In its implementation of the Ipp Report, state legislatures introduced a number of diverse restrictions, partly to address the proclaimed ‘crisis’ in public liability insurance. In 2002-2003, throughout the country, statutory provisions imposed many restrictions on what the courts could have awarded using pure common law doctrine. These include ceilings on non-economic loss (pain and suffering, loss of amenities of life and loss of enjoyment of life) and in some cases controversial thresholds for the recovery of these losses. Ceilings on future pecuniary losses related to future earning capacity, and increased discount rates also were introduced. If it was ever correct to assert that civil law proceedings were productive regulators of behaviour – via deterrence and standard setting – this effectiveness has been clearly diminished as a result of these legislative changes (albeit more dramatically in some jurisdictions than others).

The Tort of Breach of Statutory Duty Tort law features a special civil action called ‘breach of statutory duty.’ This tort arises where the very terms of the statute are said to create an action in circumstances where they are breached. The action is only available if it can be proven that the legislature must have intended to create a civil action to sue. The courts will examine the nature, scope and terms of the statute to make this determination. This tort arises most often in workplace contexts (although its availability has declined); it is unlikely that it would be available in those contexts where breaches of statutes might lead to infection with hepatitis C. Rather, any such breach of an Act of Regulation would more likely serve as evidence of careless or unreasonable conduct in a civil claim based on an action for damages in the tort of negligence.

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