On The Nation: Lisa Owen interviews Judge Peter Boshier
Headlines:
The chief ombudsman Judge Peter Boshier says he wants to lead inspections into privately run secure dementia units. Currently only publicly run units are inspected.

Judge Boshier says he’s already started the process with talks with Government, and will ask for more funding to do the inspections.

Corrections has not built a separate unit for young prisoners, despite a call from the previous chief ombudsman. Judge Peter Boshier says having a separate unit would be best practice.

He also says history won’t judge us well for the use of tie down beds for prisoners who are mentally ill, and the end doesn’t justify the means.

Lisa Owen: The chief ombudsman says the use of restraints in some of our prisons goes against the UN convention on torture. In a recent report Judge Peter Boshier called the treatment of one prisoner cruel and degrading after he was secured in a tie-down bed from 4pm to 8.30am for 37 nights in a row. And while the incident was perhaps the worst example, it wasn’t the only one. Judge Peter Boshier joins me now. Good morning.
Peter Boshier: Good morning.
Are our prisons treating prisoners in cruel and inhumane ways simply because they don’t have the resources to do better?
I think that’s very much at the heart of it. The particular prisoner you’re talking about was uniformly restrained at a time when there was a change of shift. There were other times when there was good resourcing when he didn’t need to be tied down. So you’ve got to say that resourcing was a big issue.
So when you say change of shift, when they went to fewer staff on?
Correct.
Because Corrections Department says in its response that it denied resources was an issue.
Well, at the heart of the issue for me is you’ve got a prisoner — one of many, by the way, which is the big issue here — who have high mental health needs. How do you look after those people? There are a number of ways. And what my inspectors found was that there were times when they could be therapeutically treated, overseen, and they were. There are other times when they simply weren’t, and this particular one, tied down and restrained, because it was management. We found that latter was just unacceptable.
Do you think that that prisoner, Prisoner A, should be in a prison at all in that state of mind?
Well, the issue for me is this — it’s treatment and getting that person forward. I don’t mind whether it’s done in prison and there is an appropriate psychiatric circle around that prison or it’s done in a forensic unit. I don’t mind. What I do mind, from my overseeing point of view, which is my jurisdiction, is that you can’t have someone in prison with high mental health needs and have no appropriate way of treating that prisoner.
Well, because here’s the thing. The government, and you’ll be well aware of this, is spending a lot of money on building more space in prison. The prison population has exploded, basically. But should there be a greater focus on building facilities, whether they’re within the prison or outside the prison, that can deal with prisoners who have mental health issues?
Yes. Look, I think the issue for New Zealand is this, and this is why I’ve taken a big interest in it and will continue to do so. With a big prison population and many prisoners who have high mental health needs, sooner or later they’ll come out. There’s a risk there to the community that, I think, is regrettable. So in my, what I call, OPCAT role, and that jargon stands for the protocol on crimes of torture that I’m designated by Parliament to oversee, I’m trying to get those people in a better space than simply containment.
So that better space will cost money, so you’re suggesting we need to spend to solve this problem?
Yes, I am, and this is a part of our investment that I would hope the country would see as becoming a major issue.
So why isn’t it happening? Is it time that Corrections just stood up and said, ‘Look, we are actually not coping with these mentally ill prisoners’? Is that the problem?
Well, I can’t tell you where and the decisions that are made in relation to money. What I can tell you is what I’m seeing, and what I’m seeing is a minimalisation of care so that prisoners are left in sparse, minimal rooms, sometimes tied down to beds, sometimes with hand restraints all day. It’s the consequence which I would’ve thought as a progressive, civilised country we’d want to do something about.
So do you think we should get rid of restraint beds from our prison system altogether?
Let me answer that in this way. I think history won’t judge us well in the future when we look back and see how we’ve used these. I don’t think it’s very forward thinking.
Because, in essence, Corrections came back after that report and said needs must.
The issue there is I don’t think that the means justify the ends. Look, we live in a humane, dignified country where we have standards. Now, I understand Corrections’ point of view, which was, ‘If we hadn’t restrained him, he would’ve injured and killed himself.’ So how do you cope with that? There are many in that position, but I think the answer is you do it in a proper, health-based, therapeutic model, not one that simply contains.
Well, talking about attempts on lives and suicide, prisoners are four times more likely than the general population to attempt suicide, and I think since 2007, 53 inmates have committed suicide. Is this is something that your office is looking at investigating?
We do investigate, and we have a protocol with Corrections. So one of our big portfolio areas, as I think you know, is Corrections. And one thing that we are told about is whenever there is an incident which either involves a suicide or something which is very high risk. Now, by the way, one of my reasons for wanting to do this work properly is that we weren’t resourced well at a time when Serco occurred, and, frankly, I’m horrified, and I use that word guardedly, that Serco occurred under our noses. And one of my reasons for wanting to do this work properly is I hope in a civilised country, one where we have the number one transparency rating in the world with Denmark, I hope we never fall again in our space because of incidents like what happened with Serco.
So you accept that… well, that was a failure on the part of the Office of the Ombudsman not to have picked that up?
Well, when I say failing, we’re at this point. In the past, we had one inspector under our protocol to do this. Then we went to four, and we’ve now just been funded by Parliament to go to eight. So you’ll see the future shines pretty brightly for this part of our work.
One of the concerns that you’ve identified more than once is this complete lack of activities, in some cases rehabilitation programmes for prisoners, so why are we so surprised when people go on to reoffend again?
Well, look, I… As far as my role is concerned, I’ve got to be careful in setting the boundaries, and that is I’m not into the business of commentating or reforming. What I do want to say is that from the point of view of those prisoners being treated in a humane, dignified fashion, that doesn’t include doing nothing. I want to see them headed in a direction where it’s a better existence. It seems to me to—
So what would be the better existence, do you think? Because you’ve identified, like I say, in a number of reports that there are hours spent idle.
I find that almost bizarre that we don’t try to help and try to change. I would have thought that you don’t give up on someone who goes to prison by just containing. So my theme with you is let’s try and see if we can move this person from the position they’re in to a better position. I would hope that’s what we aspire to.
So, young prisoners has been an issue in the past for your office as well. These are, and I want to call them kids, 17-year-olds, 18-year-olds who are in mainstream adult prisons. I mean, under-17s have to be kept away from the general population. But your office has previously said that Mt Eden Prison, our big remand prison, should have a separate unit for these young prisoners. That hasn’t happened. What do you think the consequences of not making that change?
Well, we’ve always accepted that youth need to be carefully looked after, and there are all sorts of reasons for that that you know about and I know about, and it’s to do with being schooled into worse ways, it’s the vulnerability, it is the fact that they are developing. So I would hope that we have a philosophy embedded that you separate youth from hardened prisoners. It’s not good policy, and it’s not good in terms of our convention requirements to have them all mixed up.
But in saying that, your office has asked for a separate unit because— You also noted that lockdowns are long, so some of these teenagers are out— well, in 2015, they were out for only one or two hours a day because of trying to keep them from the general population. So does Corrections Department need to build this specific unit as previously asked for?
I think better practice involves the separate unit. Look, there are many, many respects in which we have done that, and in the youth justice and the care and protection space, that’s what happens. There are stand-alone, separate residences. It’s good practice, and I think it’s the way to go.
I suppose that raises the question — do you need powers to compel, then? Because sometimes they just don’t want to do what you want them to do.
This is a big question, and if you’re talking about the ombudsman and the powers of compulsion, those issues will always be talked about as to whether we should have more teeth. At the moment, I’m choosing to go down the track of talking more and at times exposing through publication and of trying to get there by being clearer, firmer and more robust on what I’m saying. I think that’s my job.
Okay, well, in line with that, you currently inspect facilities for people with dementia that are public facilities. What about private secure dementia units? What are your thoughts on those? Should you be allowed in to have a look at those too?
So, the starting point is the convention, which means that anyone who’s detained — anyone who’s detained — must be looked after in this humane, proper fashion. So you can be detained in a private facility, and my worry is that we don’t presently have coverage in relation to those units. Why am I concerned? Well, all we see anecdotally, and we all know this, are the occasional rising to the top, through media usually, of a position in which an older person with dementia has been maltreated. So I think it is better for our international reputation if no one who’s detained is not overseen and not looked after in a way in which we are ensuring quality. That is my starting point.
So you talk about the odd media case where it comes to attention. Do you have concerns that there are more widespread issues with the care of people in dementia units?
Well, I don’t see why there shouldn’t be, because the answer to that question is we do see in the facilities that we inspect — that is, the state-funded dementia units — use of restraints without proper documentation. So getting back to the prison thing that you’ve been talking to me about, it’s rather comfortable and easy just to restrain someone who’s proving difficult by tying them to a chair for a long period of time and then going away and getting other work done. So there are examples of that in state-funded dementia units. I don’t see why it wouldn’t occur in private ones as well.
How are you going to get in there, though? Do you need a law change?
I don’t think we do. I think, to be fair, we’ve got to ease our way through on policy with this, because this is a space where we haven’t routinely been — that is, the private space. We don’t need a law change.
Why not? Why don’t you think you need a law change?
Because a lot— we have jurisdiction where the state is responsible for people either through a direct means of an order or through funding. A lot of people are in private dementia facilities who are on benefits, and the state, in fact, funds that care.
And you think that, therefore, would give you the right to go and have a look? Because of the connection to the state — funding?
I’m saying that I don’t think a law change is required, but I’m at the point where I’m treading carefully. This is new. This is quite robust and bold. I’m not about to pounce. I want to do this in a very careful proper fashion. But I’m deliberately signalling, as I did to Parliament earlier this year, we need to watch this space, and we need to be conscious that it’s not a space that’s being looked after at the moment.
So is your signal being picked up on? Is there a political will? What kind of feedback are you getting?
I don’t know whether there’s a political will. What I do know — the avenues that we work through, that is Ministry of Justice, that’s what we’re doing, so we’re saying, ‘This is where we would like to go, and we would like you to work with us on developing acceptable policy and advice.’ That’s the stage we’re at.
So those facilities, they get audited and certified in other ways. How do you think they’re going to react if over time, even if it’s not all of a sudden, you’re allowed to have unannounced visits? What do you think that sectors going to think of this as an idea?
I would hope they would welcome it. I would hope that if an institution that’s operating really well can demonstrate that through us visiting, showing that they’ve got good standards, they’d feel pretty good about it. Equally, if there’s one that routinely failing, that’s the consequence.
Judge, you’re a very goal-orientated person. You’ve put time frames on other goals within the office. When would you like to get this sorted by?
Well, this is what we’ve done this year, and this is very, very hot off the press, because our budget debate occurred just this week. So Parliament has funded us in this inspection of prison detention space by doubling our resource. I’m now looking at going to Parliament at the beginning of next year — that is, offices of Parliament select committee that I answer to — to begin a discussion on the funding of this area. So the answer to your question — about a year away.
All right. Thanks so much for joining us. It’s good to talk to you again.

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