David Waddington – 1986 Speech on Kevin Capenhurst

Below is the text of the speech made by David Waddington, the then Minister of State at the Home Office, in the House of Commons on 27 February 1986.

It is sad that tonight we should be debating the case of a young man who was only 17 when he died last October. Unfortunately, people sometimes die of illness when in prison, and, although there are arrangements for the early release of prisoners or detainees who are terminally ill, there are bound to be cases where people die suddenly before such arrangements are put into effect.

The hon. and learned Member for Leicester, West (Mr. Janner) asks what is being done to prevent others from dying in prison. The answer has to be that no steps can be taken to prevent entirely the possibility of people dying in prison. Before a convicted person can be released early on grounds of illness, the Home Secretary has to recommend to Her Majesty that action be taken through exercise of the royal prerogative of mercy to relieve him of the effects, or part of the effects, of his conviction: and it was under the power that on 21 August 1985 Kevin Capenhurst was released early from his sentence of three and half years’ detention, which had been imposed on him as recently as 25 January last year.

The prison standing orders set out the circumstances under which the medical officer of a prison should present the case for consideration for early release; and when he is of the opinion that the illness of a prisoner is likely to result in his death within a brief period, or that he is likely to be bedridden or incapacitated until his earliest date of release, he is required to submit a report to the directorate of prison medical services and to officials in the criminal department of the Home Office. The medical officer should also be of the opinion that the prisoner’s illness or ​ physical condition means that risk of further offending is past, and he must be sure that he is in a fit state to be moved.

In deciding whether to make a recommendation to Her Majesty, the Home Secretary must also take account of such matters as the nature of the offence or offences, the criminal record of the prisoner, the length of the sentence and the time left to serve.

When a prisoner benefits from this exercise of the royal prerogative, he is free from all the consequences of his offence, and free from the control of the prison authorities. But there is no question of terminally ill prisoners being released to fend for themselves. In all cases, every effort is made to ensure that there are proper arrangements for a person’s care. We make sure that he has relatives or friends who will be able and willing to take care of him on release, or we ensure that he is discharged to the care of a hospital or other suitable place such as a hostel or hospice.

It is true that Capenhurst was not released until after the hon. and learned Gentleman had taken an interest in the case, but I must make it absolutely plain that the question whether Capenhurst should be granted early release was already under consideration in the last week of July, before the hon. and learned Gentleman came on the scene. Inquiries were in hand to establish what arrangements could be made for Capenhurst’s care in the event of his release. They included inquiries as to his home circumstances, but it was always envisaged that he might have to return to Leicester royal infirmary, which is what happened, before he went to the hospice.

Of course, a decision on whether a person should be released may be difficult to make. Even if someone is fatally ill, it may be very difficult for doctors to make a firm prognosis until death is fairly close. The hon. and learned Gentleman made a sweeping statement, which ignored entirely the obvious difficulty, when he said that it lacked common sense to keep someone in prison who was likely to die.

However, that does not mean that, as a matter of policy, people are not released early until they have but a few days or weeks to live. Cases are considered and prisoners released early even where the life expectancy may be many months. Each case is considered on its merits. All the criteria I have listed must be considered together. In different cases, different factors may be of significance. Thus it may be necessary to pay special attention to the nature of the offences and the risk of further offending.

Although cases where a dying prisoner is released early are not frequent, they are not especially rare or unusual. There are about five or six a year. So our practices are well tested and seem to have worked well in the past, with deserving cases not being ignored or passed over. They also seem to have worked properly and been applied sympathetically in the case of Kevin Capenhurst, in that when a firm prognosis as to his life expectancy was given, his release was immediately authorised. Of course, the future looked bleak from the time of the young man’s operation, but it was a rare form of cancer—especially rare for such a young man. His life expectancy was clearly extremely difficult to judge. All that Dr. Phipps at the infirmary could say at the end of July was that Capenhurst was unlikely to live for more than two years. Even so, by that time, the case was under consideration with a view to his early release. ​ I ought to say something about the hon. and learned Member’s dealings with the senior medical officer at Glen Parva. There was a misunderstanding between the hospital and the medical officer, who understood a letter from the consultant radiotherapist to mean that further operation was not possible because of difficulty in persuading Kevin Capenhurst to accept treatment. I am sorry that that resulted in the hon. and learned Gentleman suggesting to Capenhurst that he should undergo an operation which was not medically possible at that time. I do not believe, however, that that misunderstanding, although unfortunate and distressing, shows a general problem with communication between medical professions in the prison service and the National Health Service. Nor do I think that it shows that, in this case, there was a complete failure of communication. There was a misunderstanding about what was meant in the letter from the hospital.

As to our procedures and practices, they were last reviewed as recently as 1979. Even so, we have taken the opportunity to re-examine them. Although I do not believe that this case has shown up any serious deficiencies, we will make some small modifications to improve and speed up consultation and consideration. For example, we will ensure that Home Office cases which are clearly urgent are marked as such. We will emphasise the need to exercise judgments as quickly and humanely as possible. We are also considering whether advice to the prison authorities may be clarified and improved and whether there might be a need to remind medical officers from time to time of the existence of guidance.

Bearing in mind the number of these cases, prison authorities and their medical officers do not always have frequent experience of them. Their first concern as medical practitioners is the care and treatment of a patient. We will also conduct a review of potential cases by examining a sample, which will include all prisoners who are identified as seriously rather than terminally ill, to confirm that merit-worthy cases for early release are not inadvertently overlooked.

I am confident that our practices are not deficient, but I am glad to have had the opportunity to listen to the hon. and learned Member’s views in the light of his experience with this case.

Mr. Janner

I thank the Minister for giving way and for what I regard as potentially substantial modifications ​ in procedure. Do the changes include notification of the Minister about those who are diagnosed as suffering from a terminal illness?

The Minister has said throughout that consideration was given and will be given, but he has not said by whom. When a person is dying while effectively in the protection of the Home Office, the Minister should be informed. The matter should not be left to a prison medical officer or even to the prison medical service. It should go to those who are elected and who are answerable to the House.

Mr. Waddington

As the hon. and learned Gentleman knows, I do not have the day-to-day handling of these cases. This much at least is clear in my mind. There must be rules and instructions as to when the medical officer in a prison recommends that a person be released.

I have summarised the sort of criteria that have to be applied by the prison medical officer. That is the first stage. There have to be rules telling the medical officer when he should refer. When he refers, he is referring the case out of the prison to the Home Office. As to whether a case when referred to the Home Office comes straight on to the Minister’s desk, I am not qualified to say. The hon. and learned Gentleman will realise my difficulty. I will check with my noble Friend and ask him to reply by letter to the hon. and learned Gentleman. I do not want to find that I have been in error, although I think I know what happens in these cases. I have had the opportunity of looking at the instructions and practices which are carried out. I do not think there is any evidence that they are deficient.

This has been an interesting debate. It has given me the opportunity of pointing out that certain changes have taken place, although they are not of a major sort. It gives me the opportunity to thank the hon. and learned Gentleman not only for having raised the case but also for having taken a close interest in the welfare of this young man and for having gone to a great deal of trouble to ensure that he could go into a hospice when he was moved from a hospital in Leicester.

It is appropriate that I should end my remarks by voicing my thanks to the learned and hon. Gentleman, but I think that I have also, in a friendly and co-operative spirit, rebutted some of the rather exaggerated criticisms that he made.