Amendment 209

Police, Crime, Sentencing and Courts Bill - Committee (8th Day) – in the House of Lords at 6:00 pm on 15th November 2021.

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Baroness Burt of Solihull:

Moved by Baroness Burt of Solihull

209: After Clause 124, insert the following new Clause—“Maternity services in prisons (1) The Secretary of State must provide appropriate midwifery care within the female prison estate.(2) “Appropriate midwifery care” means—(a) midwifery care that is appropriate to a custodial setting;(b) maternity services that are suitably resourced to provide—(i) an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care;(ii) a maternity pathway for prisoners that includes a process for women who decline to engage with services;(iii) access for prisoners to psychological and psychiatric services;(iv) training for staff in trauma-informed care;(v) training for staff in neonatal and child resuscitation procedures; and(vi) appropriate emergency equipment for children and neonates.(3) The Secretary of State may provide guidance on how to respond to births in prison.”Member’s explanatory statementThis amendment builds on recommendations from the Prisons and Probation Ombudsman investigation into the death of Baby A at HMP Bronzefield to ensure there are appropriate maternity services in the female prison estate.

Photo of Baroness Burt of Solihull Baroness Burt of Solihull Liberal Democrat

My Lords, Amendment 209 seeks to reinforce the existing provision of maternity services for pregnant women and their babies in prison. Noble Lords who follow these matters will know that many women’s prisons have mother and baby units, but they are not equipped to facilitate childbirth, and the birth should always take place in hospital. However, around one in 10 does not: either the baby is delivered on the way to hospital or still inside the prison.

I have experience to bring to bear on childbirth in prison which I imagine no other Member of your Lordships’ House possesses. I have been, at least nominally, in charge of a prison when an inmate started labour. I was in my early 20s at the time, a new and highly inexperienced assistant governor at Holloway Prison on evening duty, so nominally in charge of the jail. The news that an inmate had started labour was received with glee by the officers, who delighted in telling me the good news and watching the expression of panic on my face. Fortunately for me, and the woman giving birth, these officers were highly experienced in handling these circumstances. An ambulance was summoned, and the mother-to-be was promptly sent off with an escorting officer to hospital. The outcome was a happy one.

More than 40 years later, pregnant women are still sent to prison, locked up with no agency to determine their fate, and the outcome is sometimes very different for the mother and the child. Now is not the time to delay your Lordships with an argument for not sending pregnant women to prison, much as I would like to, but it is important that provisions are watertight and that women and their innocent babies are kept as safe and well as possible because we know that things can go very wrong.

I turn to the scandal of Baby A who was born at HMP Bronzefield on 27 September 2019 and who died alone with her mother, not to be discovered until the following morning. The pathologist was unable to determine whether this baby died before or after birth. HMP Bronzefield has a mother and baby unit, but for some reason Ms A was deemed unsuitable for the unit, so she and her unborn baby were left to the mercy of the general prison staff, medical and general, who regarded her as difficult. I am sure that she undoubtedly was difficult. Going back to my time at Holloway, I remember being put in charge of what was then termed the Borstal unit. That was full of difficult young women who presented immense behavioural challenges to the staff and with whom they were very unpopular. It was not until I went into the backgrounds, upbringing and abuse that those young women had suffered that I began to understand what had contributed to that behaviour.

Forty years later, Ms A was one such vulnerable young woman. She was only 18 years old, but her young life was already beset with abuse and trouble. I know what a pain a young prisoner can be. I was in charge of a whole wing of them, and I get why Ms A was not Ms Popularity with the staff, but it was known that she was extremely vulnerable, mistrustful and terrified of having her baby taken away from her. The ultimate irony in the case of Ms A is that she had not been convicted of a criminal offence. She was on remand, and three days after she had suffered the trauma of giving birth alone in her cell and losing her baby, this vulnerable, traumatised young woman was released on bail.

I do not want to pile further agony on the staff at HMP Bronzefield specifically, but it is crystal clear that the service given to troubled pregnant women in prison is not fit for purpose, hence this amendment, which sets out the very least a pregnant woman should receive, whatever her circumstances. The amendment is based on the recommendations of the Prisons and Probation Ombudsman in its report and subsequent inquiry: an appropriately qualified midwifery lead in every woman’s prison; a maternity pathway to include prisoners who decline to engage with the maternity services available; making sure that prisoners have access to psychological and psychiatric services; training for staff to understand and deal with young women—and men, for that matter—who have experienced trauma which is contributing to their behaviour; appropriate training to deal with emergencies for neonates and children; and the physical tools to resuscitate them.

I acknowledge and welcome the work that is being done in the extensive review of care for pregnant women, which was published in September in the pregnancy, mother and baby units and maternal separation in women’s prisons policy framework. There are some helpful recommendations, including early contact and signposting to services, more extensive central reporting on women in MBUs including reasons for non-admission decisions and additional welfare checks. However, I still look forward to hearing what the Minister has to say about these recommendations in my amendment and how people such as Ms A and her lost baby will be better helped in future. I beg to move.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

I congratulate the noble Baroness, Lady Burt, on her extremely moving opening speech. I agree wholeheartedly that pregnant women should not be in prison. We have abysmal conditions in many jails and they are not the place for a pregnant woman. A pregnant woman might be difficult. I have been pregnant twice and I can guarantee that I had some difficult days—some people might argue that I am still having them. When women suffer in this way—and trans men who are having babies—there are lifelong repercussions, I hope for the Government as well as for the women and their babies.

The Howard League for Penal Reform has highlighted the fact that pregnant women in prison are routinely denied access to suitable maternity care and that babies have died as a result. Many women and transmen in prison have very complex needs physically and sometimes mentally. As the noble Baroness, Lady Burt, explained, they often have a history of abuse, neglect, addiction and poverty. The Government are not helping. They are not recognising those problems and do not understand their role; while prison is a punishment, rehabilitation has to take place afterwards.

Women in prison should receive at a minimum the same standard of maternity services as women outside. Of course, they often have additional challenges and are in need of specialist midwifery care, which should be supplied. When we punish these women in prison, we also punish their babies, and that cannot be right. Getting this right will change the lives of prisoners and families, and have an impact for generations. Like the previous amendment, this is something the Government have to pick up.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, I have added my name to this amendment and I warmly commend the speeches of the noble Baronesses, Lady Burt and Lady Jones. Reading the report of the shocking death of Baby A is salutary indeed. It took me back to the debate we had earlier in Committee, looking at the special needs of women in prison and the effect of custody on those women and their children.

I refer back to the speech made by the noble Lord, Lord Marks, when he referred to the briefing from the charity Women in Prison. This related how more than 53,000 children each year were affected by their primary carers being sent to prison and that 95% of children whose mothers are in prison were forced to leave home. One sentence encapsulated it for him:

“‘We’ve been sentenced’, says a mother, ‘but they’ve been sentenced with us.’”.—[Official Report, 1/11/21; col. 1036.]

The point was also at the heart of the contribution made by the right reverend Prelate the Bishop of Gloucester. She said that parental imprisonment was, for the children concerned, a well-recognised predictor of mental ill-health, poor educational achievement and employment prospects, and future criminality. It sets a context for discussing the particular circumstances of Baby A and pregnant women prisoners.

Of course, there are many lessons to be learned in respect of both HMP Bronzefield and the prison system as a whole. The report of the Prisons and Probation Ombudsman made a number of very important recommendations. In particular, there was a recommendation of principle that, as the noble Baroness referred to, all pregnancies in prison should be treated as high-risk by virtue of the fact that a woman is locked behind a door for a significant amount of time and there is likely to be a high percentage of avoidant mothers who have experienced trauma and are fearful of engaging with maternity care.

The noble Baroness, Lady Burt, listed some of the key recommendations. I just want to focus on what I would call “system recommendations”. A specific recommendation was made to the director of health and justice for NHS England to consider the findings and recommendations of the report and ensure that the learning is applied across the women’s estate. It went on to say that this should include recognition that a clinic-based community model of midwifery care was not appropriate for custodial settings, and that all pregnancies in prison were high-risk. What response has been received from NHS England and what co-operation is being given by NHS England to the Prison Service to take forward that recommendation?

I, like the noble Baronesses, welcome the new policy framework for prisons on pregnancy, mother and baby units and maternal separation as a significant step forward, but I am sure we need to do more. I was struck by the comments of Dr Edward Morris, president of the Royal College of Obstetricians and Gynaecologists, who said:

“The next step is to ensure that these policy commitments are translated into practice on the ground across all women’s prisons, and that all staff in women’s prisons receive the right training to provide women with the information and support they need. Alongside strong links to the local midwifery team, we feel strongly that all maternity services located near to a women’s prison should have a designated obstetrician with responsibility for ensuring high quality care for women in prison.”

I very much agree with that. I, too, would welcome some reassurance from the Minister that his department is taking these recommendations seriously. I particularly urge on him the need for the closest co-operation between his department and NHS England. At the end of the day, the lessons learned from this tragic case must be applied to the prison system as a whole.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland 6:15 pm, 15th November 2021

My Lords, I support this amendment, and very much hope that the Government will either accept it or explain what they are doing in response to the report of the Prisons and Probation Ombudsman on the case of Miss A and her baby. The noble Baroness, Lady Burt, has explained the facts; it is worth looking at them in a little more detail.

Miss A, as she is called in the report, was remanded in custody on 14 August; she was pregnant. It does not say in the report whether the court knew that she was pregnant, but that is not what this amendment deals with. On 19 August, she was seen by a safeguarding midwife, who said that her estimated delivery date was between 24 September and 14 October. On 26 September, she was put on extended observation, which means she would be seen by a nurse in the morning, at lunchtime, in the evening and twice overnight. On that very day, 26 September, she went into labour. At 8.07 pm, 8.32 pm and 8.45 pm, she called for help and, in particular, called for a nurse. All three calls for help were ignored. At 9.27 pm and 4.19 am that night, she was inspected—I assume through a cell hatch—for a regular roll call, and nothing untoward was spotted. At 8.21 am the next morning, other prisoners reported that there was blood in her cell, and at 9.03 am an officer identified that she had given birth overnight and that the baby had died.

It is an absolutely terrible story, as the ombudsman describes. As the noble Baroness, Lady Burt, said, the ombudsman made specific recommendations, which are reflected in proposed new subsections (1) and (2) of her Amendment 209. It says that the Secretary of State must provide “appropriate midwifery care” within the female prison estate, and then defines “appropriate midwifery care” as meaning

“midwifery care that is appropriate to a custodial setting … maternity services that are suitably resourced to provide … an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care … a maternity pathway for prisoners that includes a process for women who decline to engage with services”— as Miss A may have done—

“access for prisoners to psychological and psychiatric services … training for staff in trauma-informed care … training for staff in neonatal and child resuscitation procedures; and … appropriate emergency equipment for children and neonates.”

A lot of those go beyond what would have made a difference in this particular case, but if those recommendations of the ombudsman had been given effect to, the tragedy almost certainly would not have occurred. This gives the Government the opportunity to respond in this House to those recommendations, all of which seem sensible and will not impose a substantial financial burden on the prison estate, because there are not that many women’s prisons. If the Government are not willing to accept these proposals, what are they going to do about the problem? Can they give a reason why a duty such as this on the Secretary of State should not be expressed in the legislation?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, I am very grateful to the noble Baroness, Lady Burt, for tabling this amendment. As the explanatory statement makes clear, the amendment builds on the recommendations of the recent independent investigatory report by the Prisons and Probation Ombudsman into the death of Baby A—as we are calling the baby—at HMP Bronzefield.

I shall start by repeating what my honourable friend Victoria Atkins MP said when giving oral evidence to the Justice Select Committee’s inquiry into women in prison on 3 November. I quote her because I want to associate myself with this, word for word. We are

“very grateful to the ombudsman for her report. The facts as they unfolded in that report were truly shocking. And the fear that that young woman must have felt and the loss she is dealing with even today, we do not, we cannot contemplate anything of that nature ever again within the prison estate.”

My deepest condolences remain with those affected.

The death of Baby A was a tragic and harrowing event and has rightly been the subject of several investigations and inquiries, including that by the PPO, to try to ensure that all the necessary lessons have been learned to avoid a repetition in future. The Committee may be interested to know that there is a Question on this incident on, I think, Wednesday, which will be another opportunity for the House to look at this terrible event, and I believe I am going to be responding to it.

While I point out that we are not talking about sentencing here, and the noble and learned Lord, Lord Falconer of Thoroton, was right to say so, it is right to say that when it comes to sentencing, pregnancy is certainly a mitigating factor that is specifically taken into account in the sentencing guidelines. I should also say that it is exceptionally rare now for a woman to give birth in prison. The most recent figures, from July 2020 to March 2021, show that 28 births—90% of the total number of births—took place in hospital and none took place in prison. I understand that in the case of the missing 10%, the baby came out a bit quicker than anticipated and the birth might have taken place in the ambulance, but none took place in prison.

In response to the terrible disaster of what happened to Baby A, the previous Lord Chancellor, the right honourable Robert Buckland MP, commissioned the independent external investigation by the PPO. We have since accepted and acted upon all its recommendations for the Ministry of Justice and the Prison Service. We immediately put in place practical steps across the women’s estate, including providing all women with free phone access to local NHS pregnancy advice services and additional welfare observations for pregnant women in their third trimester. At that time we were already undertaking a fundamental review of national policy on pregnancy, mother and baby units and maternal separation in women’s prisons.

As the noble Baroness, Lady Burt, recognised and said she welcomed, that work led to a new policy framework, published on 20 September, which develops those immediate actions into national requirements for all women’s prisons, delivering on a wide range of reforms. The new framework has an extended policy remit covering requirements on perinatal care and maternal separation, in addition to mother and baby units. I hope that what I have said so far—although I will say something more—reassures the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, that we are serious about our response to this matter. We are determined to take all necessary action to avoid a similar tragic event in the future.

I shall turn to the detail of the amendment and explain why, in the light of the current legislative framework, we are not persuaded that what is proposed is necessary. Currently, NHS England is responsible for commissioning almost all forms of healthcare for prisoners within both the public and private estate in England under Section 3B of the National Health Service Act 2006 as amended by the Health and Social Care Act 2012. That statutory obligation has to be read together with Rule 20(1) of the Prison Rules 1999, which states:

“The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service.”

The requirement to commission healthcare services and to secure and ensure prisoners’ access to them therefore already applies to the provision of maternity services in the women’s prison estate, so we do not consider that there is any need to add a further separate obligation in statute as proposed by the amendment. What is important is that we ensure that it actually happens. I certainly do not mean to be flippant, but repeating something in statute is not the way to ensure that it happens. We are focused on ensuring that it happens. We already have the statutory obligation.

In fairness to the PPO, I should note that it did not recommend any change to the statutory framework. Rather, it said at paragraph 14:

“Overall, the healthcare offered to Ms A in Bronzefield was not equivalent to that she could have expected in the community.”

It is that provision that we are focused on—ensuring that expectant mothers in prison get the same care as they would have received in the community. The Government’s position is that we would rather focus on that than duplicate statutory provision.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

The amendment would not be duplicating anything because it contains specific provisions that are not referred to in the other statutory obligation, so it would be clear what was required.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

What is required is that women in prison have access to the same maternity services as they could expect in the community. My suggestion is that once that is set out, that is a sufficient legislative obligation and the Government need to ensure that it actually happens.

I hope that nothing I have said detracts from what I said right at the start, which is that we are appalled by what happened to Baby A. It must never happen again, and we are going to do all we can to ensure that it does not. However, for the reasons I have set out, I invite the noble Baroness to withdraw the amendment.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, before the Minister sits down, I would like to ask him about the relationship between his department and NHS England. What express work is now being undertaken to ensure that the NHS discharges the statutory responsibility that he has just referred to?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

I know that when it comes to the prison estate, there is a very close relationship between my department, the Prison Service and NHS England. Rather than read something off a screen, may I write to the noble Lord and set out a paragraph or two to assist him on that? I am happy to discuss that further with him—or it might be appropriate for the Minister in the department with particular responsibility for prisons to do so. Anyway, I will write to the noble Lord.

Photo of Baroness Burt of Solihull Baroness Burt of Solihull Liberal Democrat

My Lords, I am extremely grateful for the learned contributions that have followed my words today, particularly from the noble Lord, Lord Hunt, and the noble Baroness, Lady Jones. I have taken heart, to a degree, from what the Minister has said. I accept what he says about the difference between statute and practice. We cannot just enact laws and expect everyone to suddenly do as they are told—it does not work like that—so I think the intention is extremely important.

I shall take this away and consult the bodies that have advised me—particularly Women in Prison, to which I am very grateful. For the time being, I respectfully request to beg leave to withdraw the amendment.

Amendment 209 withdrawn.