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Prescribing of condoms in prisons: survey report (1997) Contents Background and introductionThis report describes the findings of a questionnaire survey into the availability of condoms within prisons which was undertaken by the BMA Foundation for AIDS, in association with the National AIDS and Prisons Forum, between September and November 1996.Provision of condoms within prisons for the prevention of HIV and other sexually transmitted infections has been a matter of debate in the UK and internationally from as early as 1987, when a World Health Organisation (WHO) expert consultation called for "careful consideration" of condom availability for disease prevention in prisons should be freely available in prisons, and the Prison Reform Trust took a similar view Progress in England and Wales has been slow. In 1991, HM Prison Service initially began to encourage prison governors to introduce schemes whereby prisoners being released from custody (permanently or temporarily) could have access to condoms. A thorough review by the Service's AIDS Advisory Committee Given the lack of general availability of condoms, there were concerns about the potential legal liability of prison medical staff if a prisoner contracted HIV or other infection sexually while in prison. For this reason, Dr Rosemary Wool CB, the Prison Service's Director of Health Care, issued a "Dear Doctor" letter dated 16 August 1995 (see Annex 1) encouraging prison doctors to prescribe condoms and lubricants to individual prisoners, when in the doctor's clinical judgement there is a known risk of HIV infection through sexual behaviour. The letter stated that there might be a legal risk of a doctor being found in breach of his/her duty of care for not providing condoms when circumstances warrant, and that homosexual acts between consenting adult prisoners are not automatically unlawful as a prison cell is often capable of being deemed "a private place" under the relevant law. It is Prison Service policy, accepted by Home Office ministers, that doctors can prescribe condoms to prisoners within the circumstances covered by Dr Wool's letter. The BMA Foundation for AIDS believes that condoms should be available in all prisons without the need for direct involvement of health care staff. However, since this has not yet been achieved, the Foundation wished to draw attention to the "Dear Doctor" letter and to assess how its guidance has been implemented in practice. The Foundation accordingly conducted a questionnaire survey as described in the remainder of this report. It should be stressed that this was not an entirely neutral research exercise, since survey respondents were informed of the Foundation's views, and the findings should be interpreted against this background.
Survey method and response dataA questionnaire with a covering letter signed by Dr Fleur Fisher, vice-chairman of the BMA Foundation for AIDS (Annex 2) was sent addressed to the "Senior Medical Officer" of each of 126 prison establishments in England and Wales at the start of September 1996. In mid October 1996, a follow-up letter and another copy of the questionnaire was sent to the senior medical officer of each establishment from which no identifiable response had been received. As a result, 76 questionnaire responses and one letter stating refusal to respond were received by 29 November 1996, and have been included in the analysis.These 77 responses may not correspond to 77 prison establishments, for the following reasons:
Table 1: Response to questionnaire
Quantitative findings: awareness of condom prescribing arrangementsAt a quantitative level, responses to the questionnaire showed good awareness of the arrangements whereby doctors are encouraged to prescribe condoms as set out in the "Dear Doctor" letter. More than 90% of respondents said that they had received the letter, that they had passed it on to at least one other person within their prison establishment, and that all doctors working in the establishment were aware of it. Somewhat fewer respondents, 71%, said the letter had been discussed by the AIDS management team or multidisciplinary HIV team at their establishment. However, this is not surprising in view of another survey, conducted at around the same time, suggesting that about 20% of establishments do not have such a team (National AIDS and Prisons Forum, Report 1995/1996).Most respondents reported that they had taken at least some positive steps to fulfil their duty of care in respect of prescribing condoms to prisoners who might be at risk of HIV. In many cases, the information given was quite vague, and there is a degree of subjectivity in the categorisation of responses into whether or not any steps were being taken. It was noteworthy, however, that when asked how they monitored the prescribing of condoms, 28% of respondents volunteered the information that no condoms had been requested by prisoners. Where some method of monitoring was reported, it was most commonly through pharmacy records or stock checks. The quantitative results are summarised in the following tables. All percentages are based on the number of completed questionnaires received (76). Because of rounding errors, they may not add to 100%. Comparison between different types of establishmentAn attempt was made to analyse the questionnaire responses according to different types of prison establishment, ie: whether holding male or female prisoners; whether for adults or young offenders; and whether open or closed (the latter comprising local, training, remand and dispersal prisons). This was difficult because:
However, it is possible that there were statistically non-significant trends towards greater condom availability in adult as compared to young offender institutions, in male as compared to female ones, and in open as compared to closed ones.
Table 2: Awareness of "Dear Doctor" letter
Table 3: Steps taken in relation to condom prescribing
Table 4: Monitoring of condom prescribing
Issues raised by qualitative responsesThe foregoing quantitative analysis provides a crude summary of whether the survey respondents had taken steps to implement the "Dear Doctor" letter from the HM Prison Service Director of Health Care. However, their written comments revealed a variety of additional issues affecting the extent to which condoms are genuinely accessible to prisoners who may be at risk of HIV or other infections. These comments are grouped under the following headings:How is the availability of condoms made known?Most responses suggested that health staff and key personnel such as HIV counsellors were aware of arrangements for providing condoms. In some establishments steps had clearly been taken to ensure that prisoners knew how condoms could be obtained:
How are condoms made available, and what does "prescribing" mean?There were huge variations in the ways in which prisoners could obtain condoms in different establishments. In some, condoms were widely available, and this appears to have pre-dated the "Dear Doctor" letter. Quotes from respondents at two open prisons were:
Whereas in some establishments "prescribing" of condoms seemed to be interpreted very loosely, in others the term was taken more literally. One respondent stated that condoms are not "a legal prescription item" and expressed concern about the potential legal liability of medical staff if they issued condoms which were not recommended by the manufacturers as suitable for anal intercourse, and an inmate subsequently contracted HIV. The establishment in question appeared to be dealing with this creatively, by installing a free dispensing machine from which inmates could get condoms without direct medical involvement. It is possible, however, that similar concerns might have led other establishments not to provide condoms at all. Another respondent queried why clinical judgement in issuing condoms was felt to be necessary in the prison service when this is not the case in the NHS:
Resistance to condom provision in certain types of prison/for certain types of prisonerSome respondents considered that provision of condoms was inappropriate because of the prison population served. For example, the sole person who wrote a letter refusing to respond to the survey stated that s/he was "unable to complete this questionnaire" because s/he was working in a female establishment. Another wrote on the questionnaire that "condom prescription is not applicable" for the same reason. However, some respondents from other female establishments reported that they had taken steps to implement the "Dear Doctor" letter by providing condoms to inmates being discharged or going on home leave/town leave.Similarly, respondents from two young offender institutions said that they did not provide condoms because "many [inmates were] legally under age for consent" and "all inmates under 18 ... letter does not apply". Again, some other respondents from young offender institutions did not appear to regard this as a barrier to condom provision. Another respondent from an adult prison stated that "condoms [are] not prescribed because of the high numbers of sex offenders. Also seen as condoning homosexuality". While concerns about sexual abuse and exploitation in prisons may be valid, this respondent's reference to "condoning homosexuality" is intriguing. It could be argued that this expresses a moral judgement on matters which should be of no concern to the doctor, especially since the "Dear Doctor" letter had made clear that male homosexual behaviour within prisons is not necessarily unlawful. This respondent did, however, state that condoms were issued to prisoners on home leave/discharge. Organisational barriers to condom provisionSome respondents reported organisational barriers to condom provision which went beyond their own role as health professionals. These could be vague:
Other comments suggested concern about the legal aspects of male homosexual behaviour in prisons:
Finally, one respondent attached a copy of his/her establishment's policy on condom prescribing to the questionnaire, as follows:
ConclusionsTwo main conclusions can be drawn from the results of this survey:Most prison medical officers have taken at least some steps to implement guidance that condoms can be prescribed to prisoners at risk of HIV infection. However, the way in which the guidance has been interpreted and the availability of condoms varies widely between different establishments. In some prisons condoms are readily obtainable without direct medical or health worker involvement. However, there appear to be significant obstacles to condom accessibility in other establishments where these are only provided through individual consultation with a health professional or counsellor. In particular, it can be problematic for prisoners to obtain condoms for use within the prison itself, as opposed to when going outside. These problems manifest themselves in different ways in different prisons, but they probably reflect underlying hostile attitudes and prejudices of prison staff and/or prisoners surrounding homosexual behaviour. While such attitudes persist, it is unrealistic to expect that all prisoners who require condoms will feel able to ask for them, even from medical staff in confidence. Although there is little reliable information on the prevalence of male homosexual behaviour within prisons, it is reasonable to assume that this occurs in many if not all establishments. On public health grounds, there is a pressing need to make condoms genuinely accessible throughout the prison service.
RecommendationsThe Prison Service should produce a circular for governors reiterating the guidance given in Dr Wool's Dear Doctor letter of 16 August 1996 and setting out the implications of this guidance for governors and their duty of care towards all prisons in their establishment.The Prison Service should make a clear statement that possession of of a condom does not constitute an offence for which a prisoner may be placed on report. The Prison Service should introduce practical guidance on access to condoms, including:
Although it is good practice for doctors and other health workers to enquire about possible HIV risk behaviour, issue of condoms should not be conditional on this. Health professionals should offer condoms and health advice about how to avoid HIV and STDs to prisoners as a matter of course. Issues of sexuality should be addressed in training for prison officers and health professionals in order to counter prejudice and promote acceptance of homosexual behaviours and lifestyles.
AcknowledgementsThe author and the BMA Foundation for AIDS would like to thank the National AIDS and Prisons Forum, and Dr Silvia Casale in particular, for advice, encouragement and assistance throughout this project. Preliminary results from the survey were presented at the Forum's World AIDS Day conference on 29 November 1996, and comments made by participants at that meeting have been helpful in writing this report. Mr Stephen Barrow of the Prison Service Directorate of Health Care also provided useful information.
References1. WHO consultation on prevention and control of AIDS in prisons. Lancet 1987; ii: 1263-64.2. Prison Reform Trust. HIV, AIDS and prisons. London: Prison Reform Trust, 1988. 3. World Health Organisation. WHO guidelines on HIV infection and AIDS in prisons. Geneva: WHO, 1993. 4. HM Prison Service AIDS Advisory Committee. The review of HIV and AIDS in prison. London: COI, 1995.
HM Prison Service Health Care 16 August 1995 Dear Doctor TRANSMISSION OF HIV WITHIN PRISONS: THE PRESCRIBING OF CONDOMS I wrote to you on 18 May 1994 (DDL (94) 6) following the first recorded case of sexual transmission of HIV from one inmate to another. In that DDL I pointed out that doctors have a duty of care to prescribe as they see fit in order to reduce the risk of infection with unprotected sex. It seems that few of you interpreted this advice as including prescribing of condoms to patients known to be at risk of HIV. Prisoners do not have the opportunity to purchase across the counter medication or devices or dressings and therefore these must be supplied by the prison doctor. The purpose of this DDL is to make it clear that prison doctors are free, in the exercise of their clinical judgement, to prescribe condoms for individual patients. The capacity to prescribe within prisons is indeed likely to reduce the likelihood of a prison doctor being found in breach of his/her duty of care if a prisoner-patient contracts HIV in prison. Legal Advice is that consenting acts between adult prisoners in a prison cell are not automatically unlawful and that a prison cell is in many circumstances capable of being deemed a "private place" under the terms of the 1967 Sexual Offenses Act. Even in those circumstances where homosexual behaviour is not lawful (eg if one or both the participants is under the age of 18 years), neither the doctor nor the Prison Service could be liable since the demonstrable intent in making condoms available is to preserve health rather than to encourage homosexuality. The provision of condoms would not constitute "aiding and abetting". This follows on from the judgement in the case of Gillick v West Norfolk and Wisbech AHA and Another (1985). The burden of our legal advice is in fact that there may be a legal risk in not providing condoms in the relevant set of circumstances through a failure in the duty of care. In order to meet this duty, doctors are encouraged to prescribe condoms and lubricants, when in their clinical judgement there is a known risk of HIV infection as a result of HIV risk sexual behaviour. Enquiries regarding this DDL should be addressed to Mr Len Curran in Room 833, Cleland House, Tel: 0171-217-6594 or to Dr Robin Ibert, Room 835, Cleland House, Tel: 0171-217-6550. Yours sincerely Rosemary J Wool, CB PDG (95) 324/16/18 Annex 2: covering letters and
questionnaire Follow-up reminder letter (sent on BMA Foundation for AIDS letterhead) To: Senior medical officers of prison establishments from which no questionnaire response has been received 14 October 1996 Dear Doctor Re: Transmission of HIV within prisons: the prescribing of condoms I am writing following Dr Fleur Fisher's earlier letter, because despite a generally encouraging response we have not received a reply from your establishment to our questionnaire following up Dr Rosemary Wool's 1995 "Dear Doctor" letter on the prescribing of condoms to prisoners. If you do feel able to complete this questionnaire it would be greatly appreciated if you would please be so kind as to return it by 31 October at the latest, to enable us to obtain a representative picture of how Dr Wool's letter has been implemented across the whole prison system. For convenience, I have enclosed another copy of the questionnaire and a reply-paid envelope. Because the questionnaire can be completed anonymously, we are not able to match all responses to their establishments of origin. If you have already completed the questionnaire, or you believe that someone else at your establishment has done so, then please ignore this letter. Thank you for your assistance, Yours sincerely Hilary Curtis Executive Director STOP PRESS: We can now be reached by e-mail at hilary@bmaids.demon.co.uk. Mapping exercise following Dear Doctor letter from Dr Wool, Director of Health Care, dated 16 August 1995 concerning Transmission of HIV within prisons: the prescribing of condoms, which: reiterated that prison doctors are free to prescribe condoms for individual patients and emphasised that this capacity to prescribe is likely to reduce the likelihood of a prison doctor being found in breach of his/her duty of care if a patient contracts HIV in prison. 1. Did you receive the Dear Doctor letter from Dr Wool? YES / NO 2. Did you pass this letter on to anyone else at your establishment? YES / NO If YES, please give the job title(s) or briefly describe the role(s) of the person(s) to whom you passed it on: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Was the letter discussed by your AIDS Management Team/Multi-disciplinary HIV Team? YES / NO 4. Are all the doctors working with your establishment aware of this letter? YES / NO 5. What steps have you taken to ensure that you have fulfilled your duty of care in respect of prescribing condoms? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. What steps have you taken to ensure that this duty of care is carried out by those involved in health care at your establishment? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. What steps have you taken to ensure that prisoners who may be at risk of HIV are aware that condoms can be prescribed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. How do you monitor the prescribing of condoms at your establishment? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Please give your name and job title and that of your establishment, if you are willing to do so: Name and job title (optional): . . . . . . . . . . . . . . . . . . . . . Establishment (optional):. . . . . . . . . . . . . . . . . . . . . . . . Copyright BMA Foundation for AIDS, 1997 Printed copies of this report are available from BMA Foundation for AIDS, BMA House, Tavistock Square, London WC1H 9JP, price UKP 5 inclusive of postage and packing. |
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