Should We Use Legal Regulations to Influence the Healthy Prison Agenda in England? Nasrul Ismail MSc in Public Health University of the West of England, Bristol Introduction – name and university The presentation today is based on my preliminary findings of the qualitative interviews on the topic, as part of my MSc in Public Health dissertation. I welcome any constructive feedback from the audience to refine my theories around the topic.

Definition of ‘Healthy Prisons’ (WHO, 1986; Gatherer et al., 2009). Improving health and wellbeing Managing health risks Principle of equivalence Balancing act between rehabilitation and public protection A health promoting prison has been defined as a custodial establishment where the health and wellbeing of the prisoners are continually improved, and where their health risks are managed (Gatherer et al., 2009). This is established through the provision of a healthcare equivalent to what is provided to the communities, and is balanced with the public protection requirement (ibid). Such a definition runs parallel to the Ottawa Charter (WHO, 1986), where health is recognised to be influenced by the day-to-day environmental setting, which includes the prison as an institution. Statistics show that nearly three out of ten prisoners reported some experiences of emotional, physical, or sexual abuse as a child; the prevalence for this is higher among women prisoners (Williams et al., 2012). In addition, prisoners often come from marginalised and underserved groups in the wider community, are likely to reside in areas of multiple deprivation, and often live chaotic and disordered lives (Public Health England, 2014b).

Why is the research relevant? The latest picture of the Healthy Prisons Agenda in England Little focus on integrating Public Health and Law disciplines Renewed interest in the prison field Firstly, the healthy prisons agenda in the United Kingdom was developed nearly three decades ago, when the Home Office’s Efficiency Scrutiny Report (1990) recommended that prisons should take a greater responsibility for the promotion of health and the prevention of illness. A dedicated health promotion strategy for prisons in England and Wales was subsequently developed in 2002 (Department of Health, 2002), followed by the government’s ratification of the WHO’s Health in Prisons Project (WHO, 2000). This springboards the introduction of the Prison Service Order (PSO 3200) (HM Prison Service, 2003), which requires prison governors to promote health as part of a whole prison approach. However, critics exposed the flaws of the healthy prisons agenda in the UK, in that the compliance is not compulsory (Woodall, 2012), making enforcement dubious, along with the lack of evaluation of the effectiveness of the order (Douglas et al., 2009). Secondly, there is a growing interest in the state of health of the prisoners and the associated social determinants. In parallel, a broad legal framework to address health inequalities in prison is emerging through legal norms such as legislation and case laws, particularly at the European Union level. However, there has been relatively little focus on integrating these paradigms. Thirdly, there is a renewed hope and interest in using legislation to create permanency of the policy around prisons in the UK through the Prison Reform Bill 2016, as part of the biggest shakeup of the prison system since the dawn of the Victorian era. Taking into account these three factors, this research seeks to explore the possibility of advancing the healthy prison agenda in England through an upstream approach of legislation. Although there is a potential for reconceptualising the use of the legal structures as a social determinant of health, it is a prerequisite to first hear the voices, perceptions, and experiences of the decision-makers and policy influencers in England, who operate at the strategic and operational level, whether legislation is the way forward in delivering the healthy prisons agenda across the prison establishments in England.

The Limit of Legal Regulations The majority of the participants questioned the capability of the legal regulations in capturing the rather broad, and often contested nature of the healthy prisons concept. The majority of the participants questioned the capability of the legislation in capturing the rather broad, and often contested nature of the healthy prisons concept. Here, the participants articulated the concept of healthy prisons is characterised through two components of process and outcomes. In terms of the process, the concept of healthy prisons is seen through the management of activities within the prison and interaction between the staff and prisoners, within which a supportive and enabling environment is created. In terms of the outcomes, the healthy prisons agenda is seen as capable of producing the ‘beyond the prison wall’ impact, with prisons seen as a transition rather than an end destination, with the dividend of the interventions accrued within the prison and released into the community.

Prescriptive of behavioural rules Accountability versus compliance Considering the wide-ranging process of a healthy prisons agenda, there is a danger that legislation can be prescriptive of behavioural rules that ought to happen in prisons and simultaneously limits the potential far-reaching outcome beyond prison walls. Interestingly, some participants explained that it may guarantee accountability, as it safeguards the entitlement of prisoners. However, to these participants, accountability comes with a degree of compliance. There was a concern that this may encourage a tickbox exercise, and there was anxiety of creating the culture of litigation as the legislation will set certain benchmarks to achieve; and failing to achieve such benchmarks can constitute a breach of the duty of care and subsequently open the floodgates of litigation.

…if we can’t deliver on all the things we are supposed to deliver at the moment with the legislation that we have, how is that legislation going to make things more effective? …in terms of the staff who are trying to make things work it may not necessarily help [the] workforce in terms of recruitment and retention of staff. Especially, if you move to a model where litigation becomes more common as it is in hospitals’ or doctors’ surgeries… most people who work in health do so because they want to help people and the risk of litigation I think is something that would frighten them…(Participant 7). Culture of litigation

Prison Governors and Staff as Street Level Bureaucrats (Lipsky, 1991) Whilst legal regulations create a top-down framework that governs the expectation of the healthy prisons agenda across England, implementation may look different on the ground. The prison governors and the prison staff are the street level bureaucrats who will implement the governing framework at the local level. Whilst legislation creates a top-down framework that governs the expectation of the healthy prisons agenda across England, its implementation may look different on the ground. The prison governors and the prison staff are the street level bureaucrats who will implement the governing framework at the local level (Lipsky, 1991), by which the success is leadership-driven, value-laden, and personalities contingent.

Prison governors [are] leaders…our role is to create a culture and an environment…So if you are talking around the healthy prison environment, I decide as the governor of the prison, if that is my priority. And if it is my priority, then I create the culture of a healthy prison by my leadership (Participant 17). On one hand, the participants expressed their views that prison governors have the power to make things happen and that such a power may turn into a non-decision-making (Stevens, 1974). The opinion is particularly pertinent, as we are witnessing the country’s first autonomous prisons on 18th May 2016, which will give unprecedented freedoms to prison governors, on how the prison budget is spent, operational freedoms over education and rehabilitation services, and whether to opt out of national contracts.

… A number of prison staff openly said that they would turn a blind eye to prisoners who smoked. The reason for that was sometimes practical; they didn’t have the time or resources to address that because they were dealing with more pressing issues, in their view. Secondly, they were smokers themselves so they didn’t really want to enforce a piece of legislation that they themselves didn’t subscribe to…(Participant 12). On the other hand, the prison staff act as the gatekeepers in driving the culture of healthy prisons. The smoke-free prisons agenda is a good example, where the 14 prisons in the South West of England are gradually moving to an entirely smoke free prison estate. Interestingly, a participant spoke about the attitude of staff towards the smoke-free prisons agenda (see quote above). Although legislation is capable of directing what ought to be delivered to support the healthy prisons agenda, the virtue may be lost-in-action as it depends on the will of the prison governors and prison staff who will materialise the vision of healthy prisons within their establishments.

External Forces Legal regulations problematise the prison establishments as an institution that requires significant improvement in health, when there are external factors that inhibit their inability to fully embrace the healthy prisons agenda. Legislation problematises the prison establishments as an institution that requires significant improvement when there are external factors that inhibit their inability to fully embrace the healthy prisons agenda.

Diminishing level of resources The impact of fiscal austerity on healthy prisons appears in almost all interviews. This forces the stakeholders to go into defensive mode. The first external factor that influences the delivery of the agenda is around the diminishing level of resources, where the orchestration of the fiscal austerity appears in almost all interviews. The public sector is overwhelmed by the velocity of the global economy and a consensus within government that deficit spending levels across the public sector organisations have become unsustainable. This has affected ways in which the funding is distributed, particularly on prison health. This reveals the political nature of health, because, like any other resource or commodity under a neo-liberal economic system, some social groups have more of it than others (Bambra et al., 2005) and unfortunately, prisoners are not one of them. In turn, this forces the stakeholders who operate within health in prisons into a defensive mode, by developing tactical solutions for survival. They default to focusing on the reactive nature of the activities, which requires more urgent attention and thus pushes the vision of the healthy prisons agenda down the pecking order.

…We can’t do [health improvement activities] because we haven’t got the staff. I hate the default of ‘it’s always about staff’, but I genuinely think we’re in a position. We’ve got one of our prisons that’s had 77 vacancies. Phenomenal, phenomenal vacancy rates (Participant 1)

…Low positive drug test figures [is one of the] indicators that you've got a healthy prison, but all were progressively harder to provide…We stopped drug testing at [a local prison]... because it was too expensive. Well, if a prisoner says to you, “I don't want to take drugs and I want to give you a voluntary test to prove that,” and we say, “Actually, mate, it's too much money,” what message is that sending to the prisoner? (Participant 22)

Unsympathetic Perceptions Frustration with the unsympathetic perceptions of the politicians and the lack of appreciation of the public on the rehabilitative culture within prison. Such a lack of acknowledgement perhaps stems from the political views that appear to be tough on crimes. Power as a thought control (Stevens, 1974) Media positioning the issues in the public debate (Naik, 2008) Finally, it was apparent that the participants were frustrated with the unsympathetic perceptions of the politicians and the lack of appreciation of the public on the rehabilitative culture within prisons. Such a lack of acknowledgement perhaps stems from the political views that appear to be tough on crimes. Here, the government mobilises its power as a thought control (Stevens, 1974), by portraying prisoners as the underserved group for which the public should have little sympathy for spending the taxpayers’ money, with the media positioning the issues in the public debate, acting as an agent of legitimacy in generating mass belief of the public (Naik, 2008). To address this issue, the participants suggested that more work needs to be done with the politicians and the members of the public, through advocacy and campaigns. In addition, framing of the healthy prisons agenda as a driver to reduce reoffending and reduce health inequalities is seen palatable to the politicians and the public, as it promises better value for the money for the taxpayers’ purse, particularly at a time when the neoliberal politics of austerity (Kitson et al., 2011) are at the crux of the policy and political debate.

…Successive governments actually have not liked spending money on prisoners because they don’t want to be seen to be indulging prisoners… lots of the media, especially, mislead people into thinking that prison is all Xboxes, fried breakfasts, turkey dinners…and it's just not like that. Prison is a dangerous, humiliating place for everybody who goes in there... (Participant 18) To address this issue, the participants suggested that more work needs to be done with the politicians and the members of the public, through advocacy and campaigns. In addition, framing of the healthy prisons agenda as a driver to reduce reoffending and reduce health inequalities is seen palatable to the politicians and the public, as it promises better value for the money for the taxpayers’ purse, particularly at a time when the neoliberal politics of austerity (Kitson et al., 2011) are at the crux of the policy and political debate.

Final Note The preliminary findings of this research qualify the assumption that the permanency of the legislative measures will improve the implementation of the healthy prisons agenda, due to the Broad nature of the healthy prisons concept Implementation of the agenda at the lower level by the street level bureaucrats The role of external forces outside prisons in dictating the implementation of the healthy prisons So, should we use legislation to influence the implementation of the healthy prisons agenda in England? The preliminary findings of this research qualify the assumption that the permanency of the legislative measures will improve the implementation of the agenda. This follows from the broad nature of the healthy prisons concept. Compliance is compulsory, which can encourage tickbox exercise at best, and create a culture of litigation at worst. Whilst legislation is capable of prescribing the governing framework and expectations, the delivery is dictated by the wills of the street level bureaucrats at the local level. The potential governing framework of healthy prisons is influenced by the prison governors and prison staff at the local level. Finally, legislation stigmatises the prison establishments as institutions that require significant improvement, when their will of embracing the healthy prisons agenda is dictated by the lack of resources, the sentencing guidelines of the court, and the unsympathetic perception of the politicians and the public on the rehabilitative drive within the prison.