Jim Burtonwood: Early release rules for prisoners at end of life need reform

Current legislation appears to inadvertently favour those with cancer

Demographic changes among the prison population mean that deaths among prisoners in England and Wales are increasing; 204 prisoners died from natural causes in the 12 months ending March 2017, double the number a decade ago. (1) Provision of palliative care for the increasingly aged prison cohort is challenging. Prisoners have the right to healthcare equal to that of any other patient, but not at the expense of risk of harm to society. Tensions inevitably arise in trying to respect the autonomy of people who have had their freedom curtailed by the state, especially when considering the preferred place of death of a prisoner.

In the UK, imprisonment provides public protection, prevention of recidivism, and rehabilitation. For the infirm prisoner approaching the end of life it could be argued that further incarceration serves no purpose; physical frailty makes recidivism and public harm unlikely and impending death makes rehabilitation largely irrelevant. In such situations, Section 30 of the UK Crime (Sentences) Act 1997 allows the secretary of state for justice to grant early release on compassionate grounds (ERCG). (2) ERCG might be appropriate where there is risk of harm to the prisoner from ongoing imprisonment, potential benefit through release, low risk of recidivism, and adequate arrangements for safe care in the community. (3) Additionally, and crucially, death must be expected “very soon”; HM Prison and Probation Service consider this to be a prognosis of less than three months. (3)

In the course of research into palliative care provision in prisons, our group identified a recurring theme: ERCG applications were often unsuccessful in the relatively narrow time frames permitted by the legislation. To further explore this matter, we submitted a request for further information on ERCG to the Ministry of Justice (MoJ) under the Freedom of Information Act (FOI). (4) We found that in the five years up to 2017, only 48 applications for ERCG were successful, while the Prison and Probation Ombudsman recorded 845 deaths from natural causes in prison. (5) Data on the total number of ERCG applications for that period is not readily available to the MoJ. (6)

We found that the greatest hurdle to a successful ERCG application was timely recognition that a prisoner was in the last three months of life. Where acknowledgement of terminal decline was delayed, or there was prognostic uncertainty, timescales often became too tight for a successful application. The success of an ERCG application appears, therefore, to be partly contingent on the clarity of prognosis. The deterioration of patients affected by non-cancer diagnoses is accepted as more unpredictable than those with cancer. (7) Hyper-ageing (prisoners are usually physiologically older than their chronological age), high rates of multimorbidity, and relatively little research among this cohort make prognostication in the incarcerated population with non-cancer conditions even more challenging. (8,9) It is reasonable to hypothesise that an ERCG application is more difficult for those with a non-cancer diagnosis compared with those with cancer.

Our FOI data are consistent with this: in 2017, all six prisoners who had successful ERCGs had cancer. (4) Some 39% of all expected deaths from natural causes in English and Welsh prisons at that time were from non-cancer causes. It appears that current legislation risks inadvertently favouring those with cancer.

Extending the ERCG requirement for a three month prognosis might resolve this. Indeed, prison reform organisations have pressed for similar changes for many years. (10) This might help bring the UK into line with other European countries and allow for more appropriate use of ERCG without adverse effects on public safety. (11) For example, ERCG is the norm in France where the vast majority of requests are granted. (12)

While there is little research into the experience of prisoners and families in this setting, it is feasible that ERCG brings its own difficulties and psychological stresses. There may be a risk of stigma for the ex-prisoner newly released into the community, and the supportive bonds of friendship with other prisoners are also lost through ERCG. Conversely, those with non-cancer diagnoses may not be completely disadvantaged by their reduced chances of a successful application; where ERCG is unlikely, efforts may be channeled into more timely and effective advance care planning.

It is difficult to separate the arguments around ERCG from wider considerations of the role of imprisonment and justice for society. Nevertheless, we argue that current legislation appears to inadvertently treat patients differently according to their underlying diagnoses. The current legislation could be considered discriminatory according to the 2010 Equality Act. (13) It lies with clinical researchers to investigate the impact on patients, and with government and other policy makers to ensure parity of treatment through our laws.

James Burtonwood is specialty doctor in supportive and palliative care at the University Hospitals Bristol NHS Foundation Trust. This opinion piece was written while enrolled as a postgraduate student in palliative medicine at Cardiff University. Twitter @BurtonwoodJim

Karen Forbes is a professorial teaching fellow in palliative medicine at the University of Bristol.

Their research into palliative care provision in prisons formed part of JB’s MSc in palliative medicine at the University of Cardiff.

Competing interests: JB received an educational bursary from Health Education England (Peninsula Deanery) to part fund his MSc in palliative medicine at Cardiff University; KF has no competing interests.