Recommendation 130

This recommendation is assigned to CSNSW and Justice Health NSW.

Recommendation

That:

(a) Protocols be established for the transfer between Police and Corrective Services of information about the physical or mental condition of an Aboriginal person which may create or increase the risks of death or injury to that person when in custody; 

(b) In developing such protocols, Police Services, Corrective Services and health authorities with Aboriginal Legal Services and Aboriginal Health Services should establish procedures for the transfer of such information and establish necessary safe-guards to protect the rights of privacy and confidentiality of individual prisoners to the extent compatible with adequate care; and 

(c) Such protocols should be subject to relevant ministerial approval.

Context

The Royal Commission identified that in a number of the cases reviewed, Police were unaware of serious medical conditions that if known may have averted the death. The duty of care police owe persons in custody extends to the provision of relevant information that might affect a person’s wellbeing to corrections authorities and noted that appropriate safeguards should be established. In some jurisdictions information was at the time unable to be exchanged between prisoner medical services such as the Aboriginal Medical Service and Police.  Recommendation 130 is directed at formalising protocols between corrections agencies and police inclusive of safeguards to protect confidentiality and privacy. 

Detail of implementation

Section 257 of the Crimes (Administration of Sentences) Act 1999 prohibits the disclosure of information obtained in connection with the administration of the Act, unless a relevant exception applies.  CSNSW also complies with the provisions of the Privacy & Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 as applicable. 
 
CSNSW has a number of procedures reflected in the Custodial Operational Policy and Procedures (COPP) in relation to the transfer between Police and CSNSW. 

COPP Section 1.1 Reception procedures 

Outlines the procedures for accepting an offender into CSNSW custody: 
 
Point 1.2 Acceptance of inmates into CSNSW custody from Police any inmate who is suffering from serious observable injury or illness will not be accepted in CSNSW unless proper medical attention has been obtained by NSWPF and/or inmate has been evaluated by medical practitioner or personnel qualified to make a necessary medical evaluation to confirm that the inmate is fit to be detained in custody at a court/police cell location.  
 
Any inmates with mental health issues NSWPF are required to obtain a mental health clearance before accepting an inmate into CSNSW Custody. 
 
Point 4.3 Transfer of custody management documents (NSWPF) & 4.4 Procedures for transfer of documents (NSWPF). It also  
All relevant comments and alerts are recorded on the IIO (Identification & Observation form) and the documents are stored on the inmates Case Management file. It also outlines the requirements for NSWPF to provide CSNSW officers with custody management documents for each new reception including:  

• Prisoners / Intoxicated Persons Transfer Note (transfer note / transfer docket) 
• Custody Management Record (CMR) which outlines an inmate’s record of care whilst in custody and includes personal details, and any immediate crisis or medical concerns. 

All relevant comments and alerts are recorded on the Inmate Identification and Observation form and the documents are stored on the inmates Case Management file. 

Point 4.4 Procedures for psychiatric reports from court 

If the court believes a tendered psychiatric report should accompany an inmate to a correctional centre, it will request the report be placed in a sealed envelope addressed to Justice Health NSW staff and provided to CSNSW escorting officers. CSNSW officers will deliver the envelope to Justice Health NSW staff, if they are available whilst the inmate is held at the court / police cells prior to being transferred. If Justice Health NSW staff are not available, the envelope must remain with the inmate’s documents and transferred to a correctional centre with the inmate. 
 
COPP 22.4 Medical records and health information outlines the responsibilities for both Justice Health NSW and CSNSW, as agencies collecting personal information or health information from an inmate, must ensure the information is safeguarded from unauthorised disclosure and any dissemination of the information is in line with the Privacy & Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002. 
 
Justice Health NSW have limited involvement in the transfer of patients between police and corrective services. Where there are health concerns, police will escalate patients to emergency departments of local hospitals. Upon reception to custody all patients are subject to a Reception Screening Assessment (RSA) with the view of determining whether the patient is at risk of injury, illness, or self-harm. The RSA is completed with a Justice Health NSW nurse and should be completed within 24 hours of reception to the health centre. Patients are waitlisted for appropriate health practitioners for further assessment and management as clinically indicated, inclusive of Medical Officers and Psychiatrists. A Release of Information (ROI) request is sought from the patient's regular health service provider through Justice Health NSW's Health Information and Records Service (HIRS) within 72 hours of a completed RSA. 
Justice Health NSW utilise the Health Problem Notification Form (HPNF) to communicate the clinical needs and risks of adult patients and suitable placement and management requirements to CSNSW and private providers without disclosing a patient’s health information. 
 
The protocols are not subject to Ministerial approval but are subject to legislative requirements outlined above in relation to the sharing of information. 

Justice Health NSW response 

Justice Health NSW only disclose details about an inmate’s medical/health information to the extent necessary to provide adequate care rather than provide full details. Justice Health NSW maintain a health record which is separate to CSNSW.  Information that is required to be provided to CSNSW necessary for the care of the patient is conveyed through a Health Problem Notification Form (HPNF). 

Custody Notification Line 

The Custody Notification Service (CNS) was set up in 2000 in response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.  

CNS is a 24-hour legal advice and RU OK phone line for Aboriginal people taken into police custody. Under NSW law, Police must contact the ALS whenever they have taken an Aboriginal person into custody. 
When the Police phone CNS, the clients receive legal advice from an ALS lawyer, ensuring their fundamental legal rights are respected and less Aboriginal people are imprisoned. 

• The ALS lawyer asks clients: RU OK? Often, the answer is no. Threats of self-harm or suicide are common. Concerns about access to medication are common. Notifications of injuries that need to be examined by health professionals are also common. 
• ALS CNS lawyers are trained to carefully respond to these concerns to ensure police meet their duty of care to every Aboriginal person who is taken into custody. 
• ALS CNS lawyers can also contact the person’s family and an Aboriginal Field Officer, providing critical information to family who are concerned for that person’s whereabouts, health and safety. 
• Aboriginal men, women and children in custody trust the ALS and share their medical or other concerns with the CNS lawyer, knowing their lawyer will advocate for their legal rights, health and family welfare.  

Evidence

• Section 257 of the Crimes (Administration of Sentences) Act 1999
• Privacy & Personal Information Protection Act 1998
• Health Records and Information Privacy Act 2002
• COPP Section 1.1 Reception procedures
• COPP 22.4 Medical records and health information