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Ombudsman rejects inmates’ Covid testing complaint

Westgate Correctional Facility (File photograph)

Westgate inmates complained that they were punished for refusing Covid-19 tests, according to the 2021 Ombudsman's Report.

The report, the last by former Ombudsman Victoria Pearman, said the Ombudsman’s Office received several complaints from inmates that they had been punished for refusing a nasopharynx Covid-19 test.

Inmates said they were willing to self-test or use saliva tests, but were told the testing methods were unavailable.

Those who refused the test said they lost earnings and were transferred to the segregation unit.

However, the Department of Corrections said the measures were taken because of an outbreak in the prisons at the time of the complaints.

The report said: “The Department of Health had advised Westgate on the establishment of their Covid-19 protocols, and they informed Corrections that the nasopharynx test was the only suitable test during an outbreak at a facility.

“This is why alternative testing was not available to the inmates at that time.

“Corrections further informed us that the segregation unit was being used as the quarantine unit during the outbreak.

“The decision to transfer inmates who refused testing to this unit was a safety measure since there was no way to confirm whether they were positive for Covid-19. As such, they had to be isolated from the general population as a precaution.”

The report said that while the Department of Corrections had the power to discipline the inmates for their refusals, it was agreed after discussions that policies would be amended so that inmates who refused tests would not receive any punishment other than being transferred.

The report added: “Many organisations have had to balance the personal nature of medical decisions with the requirement to implement Covid-19 safety measures.

“While Corrections had the authority to punish inmates for refusing to get tested, the punishment could be seen in these circumstances as an encroachment on a person’s right to make their own medical decisions.

“Corrections demonstrated that they were responsive to the inmates’ concerns by agreeing not to punish inmates for refusing testing in the future. Focusing on what would be accepted by both Corrections and the inmates provided an effective and balanced solution.”

The complaints were some of several received by the Ombudsman from the inmates.

Another inmate complained about the handling of appeals against loss of privileges punishments inside the island’s prisons.

The inmate said that punishments were implemented immediately, while the appeal process would have to go to the Minister for National Security.

As a result, even if an appeal was successful, it was possible the inmate would have already completed the punishment with no recourse or remedy available.

“It was agreed that the Department of Corrections would amend its current policy to allow inmates seven days to appeal an LOP punishment and send the appeal to the ministry no more than seven days after the punishment is imposed,” the report said.

“During the meeting, the Department of Corrections highlighted the risk of inmates abusing this process by electing to appeal LOP punishments to benefit from the delay.

“In light of this, the Department of Corrections decided that if an inmate does not appeal within seven days the LOP punishment will be executed and their policy will be changed to reflect this.”

The report also recorded the case of a non-Bermudian inmate who was pardoned on compassionate grounds on the basis that they would be deported.

However, months after the decision, the inmate had yet to be deported and raised concerns that the Department of Immigration was unaware of the issue.

The Department of Immigration responded that they were aware of the inmate, but there were no direct flights between Bermuda and the inmate’s native country.

“All of the flights to the inmate’s home country had an overnight component,” the report said. “The Department of Immigration had engaged the services of a local travel agent to assist in finding a suitable flight.

“Flight arrangements were subsequently made soon after, and the inmate was deported a little less than six weeks after he came to our office.”

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Published July 06, 2022 at 7:52 am (Updated July 06, 2022 at 7:49 am)

Ombudsman rejects inmates’ Covid testing complaint

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