Could a prisoner’s death in a prison van be a breach of OHS laws?

ABC television program Lateline broadcast on 2 March 2010 an article (video available) about the death of 59-year-old Mark Holcroft in the back of a prison van in 2009.

Holcroft was a low risk inmate serving 7 months for a drink-driving offence.  He was several weeks into his sentence when he was being transported with six other prisoners to a low-security farm.  From the information made available by ABC, as Holcroft was dying in the van, the other inmates banged on the walls of the van and yelled to attract the drivers’ attention.  The van was equipped with a camera in each of the four corners of the van’s security compartment.  One inmate repeatedly signed at the cameras to attract the attention of the drivers.

At one point, while Holcroft was feeling ill, the van stopped at a petrol station.  Water was requested by the inmates but was refused.

SafetyAtWorkBlog spoke with Stewart Little of the Public Services Association, the union with coverage for prison officers in New South Wales.  He stated that whether the inmates and officers “are in jail, court or in transport, safety is critically important” and that prison officers keep safety at front-of-mind at all times.

A spokesperson for the NSW Coroner’s Court told SafetyAtWorkBlog that although no date has been set for an inquest into Mark Holcroft’s death, the issue will be mentioned at Glebe Coroners Court on 23 April 2010 to ensure that the preparatory work is progressing.

There are many other sad circumstances to Holcroft’s death and you are encouraged to read the article and view the video.

As you do, consider whether there is an occupational health and safety context to the issue.  It may be possible to say that Corrective Services NSW has breached its employer’s duties under section 1.8(2) – Others at workplace:

“An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”

This could apply if one considers the prison van to be a place of work.  According to Tooma’s Annotated OHS Act 2000 (NSW) – page 25 (1st edition)

“The elements of a charge under s 8(2) of the OHS Act 2000 which the prosecution must prove beyond reasonable doubt are:

  1. that the defendant was an employer;
  2. that a non-employee was exposed to risks to her or his health or safety;
  3. the risks arose from the defendant’s conduct of an undertaking;
  4. the non-employee was at the defendant’s place of work; and that there was a causal nexus between the defendant’s breach and the risk to the non-employee’s duty.”

As is clear from the interviews with four of the inmates who watched Mark Holcroft die, there is a lasting psychological impact from what they witnessed and heard.  So although Mark Holcroft died that day there were at least four others who were harmed by the experience, not to mention his family.

WorkCover NSW has been approached for a comment.

More information on the Holcroft’s death, including Parliamentary questions from 2009, can be found at the website of the NSW Greens MP Sylvia Hale.

Lateline also broadcast an interview with Professor Chris Cunneen of the University of New South Wales law faculty, on the issue of duty of care in prison transportation.

Kevin Jones

UPDATE – 4 March 2010 – Workcover NSW has advised that they do not investigate deaths of prisoners while the prisoners are in custody.

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Categories death, Duty of Care, government, law, OHS, politics, safety, transport, Uncategorized, WorkCoverTags , , , ,

4 thoughts on “Could a prisoner’s death in a prison van be a breach of OHS laws?”

  1. NSW Deputy Coroner Paul MacMahon today (12 Aug 11) made a series of recommendations in relation to my brother Mark\’s death on 27 Aug 2009.
    These included:-
    1. Standard Operating Procedures and (Corrective Services) Departmental practices for inmate transfers be reviewed so as to ensure that:-
    i. adequate drinking water is always available to inmates during transfers,
    ii. if the proposed journey is to be longer than three hours, a toilet stop be included during the course of the journey,
    iii. if the proposed journey is anticipated to be longer than four hours a meal is to be provided to each inmate prior to the start of the journey as well as during the course of the journey
    2. Consideration be given to the upgrade of current technology for the monitoring of inmates in Corrective Services transport vehicles so the monitoring of images are recorded and kept for a period of at least 14 days following each inmate transfer journey.
    3. Where items are identified as a priority (like a handset for one-way radio communication between officers and inmates in vans) to the wellbeing and safety of Corrective Services Officers and inmates , the defective vehicle should not be used until the defect has been made good by repair or maintenance.
    4. Disciplinary action be considered in respect of the performance of (Prison Officer) Peter Augustine Sheppard with particular regard to his actions as observer on the transport vehicle between Bathurst and Mannus Correctional Centre in 27 Aug 2009.
    5. Associate Professor Dr John Raftos’ view was that Mark’s death was ‘entirely preventable’.
    6. Dr Suresh Badami gave evidence he had misinterpreted Mark’s ECG. He conceded the appropriate treatment would have been to transfer Mark to hospital (for an immediate operation).
    Mr MacMahon said ‘Mark’s death is therefore primarily the result of the failure of Justice Health to provide him with proper care.

  2. Friday July 15, 2011
    Inquest into NSW prison van death
    What: Coronial Inquest into the death in custody of Mark Holcroft

    Where: Wagga Wagga Local Court
    49 Fitzmaurice Street, Wagga Wagga, NSW (week one);
    Coroner’s Court, Glebe (week two).

    When: Monday, 18 July 2011 at 10am – Friday 29 July 2011.

    Background: Mark Holcroft was a low security inmate who travelled in a Corrections NSW prison van between Bathurst Correctional Centre and Tumbarumba on 27 August 2009. Mark was pronounced dead by ambulance personnel shortly after the van arrived at Cootamundra.

    The Inquest is before his Honour Magistrate MacMahon, Deputy State Coroner. The Public Interest Advocacy Centre (PIAC) represents three members of the late Mr Holcroft’s family at the Inquest.

    About the Public Interest Advocacy Centre: PIAC is an independent, non-profit law and policy organisation. PIAC works for a fair, just and democratic society, by taking strategic action on public interest issues. Visit http://www.piac.asn.au

  3. The Coroner\’s Inquest into the death of my brother Mark will be held over two weeks in July 2011.

    During 18-22 July 2011 the case will be held in Wagga Wagga, NSW to allow the Police and locals from the prison farm where he was pronounced dead and others to attend.

    The inquest will then move to Sydney and be heard from 25-29 July at the Glebe Coroners Court. Deputy Coroner Paul McMahon will preside.

    Christopher

  4. What a tragic end to life. It\’s hard to believe someone could treat another person like that. As for the OHS angle, they were en route to a farm they were going to work on. But this treatment must transgress other standards as well – i.e. treatment of detainees.

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