Joshua Esberger

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Independent investigation into
A report by the Prisons and Probation Ombudsman
the death of Mr Joshua
Esberger, at HMP Hull, on 11
January 2021
A report by the Prisons and Probation Ombudsman
Third Floor, 10 South Colonnade Email: mail@ppo.gov.uk T l 020 7633 4100
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The Prisons and Probation Ombudsman aims to make a significant contribution to safer,
fairer custody and community supervision. One of the most important ways in which we
work towards that aim is by carrying out independent investigations into deaths, due to
any cause, of prisoners, young people in detention, residents of approved premises and
detainees in immigration centres.
My office carries out investigations to understand what happened and identify how the
organisations whose actions we oversee can improve their work in the future.
Mr Joshua Esberger died in hospital on 11 January 2021 while a prisoner at HMP Hull. He
died from pneumonia and hypoxic brain injury following a cardiac arrest. He was 28 years
old. I offer my condolences to Mr Esberger’s family and friends.
Mr Esberger had been remanded to Hull on 9 November, and from 12 November he
began to behave in an unusual manner. I am concerned that staff took far too long to
investigate the possible causes of his behaviour, including whether he might have taken
an illicit substance or was having a psychotic episode.
When Mr Esberger was rushed into hospital on the afternoon of 14 November, hospital
clinicians found that he had plastic cutlery lodged in his aero-digestive tract and had
inserted a ballpoint pen through his ear, which had passed into his neck. I have seen no
evidence to suggest that staff could have anticipated Mr Esberger’s actions, but had they
investigated his other behaviours more promptly and thoroughly, the seriousness of his
condition might have been recognised earlier along with the need to send him to hospital
urgently.
This version of my report, published on my website, has been amended to remove the
names of staff and prisoners involved in my investigation.
Kimberley Bingham
Acting Prisons and Probation Ombudsman January 2023
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Contents
Summary ......................................................................................................................... 1
The Investigation Process ................................................................................................ 2
Background Information ................................................................................................... 4
Key Events ....................................................................................................................... 4
Findings ......................................................................................................................... 12
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Summary
Events
1. On 9 November 2020, Mr Joshua Esberger was remanded to HMP Hull charged
with assault, threatening behaviour, possession of offensive weapon, possession of
a class B drug and failing to comply with the requirements of a community order.
2. A nurse completed an initial health assessment. He noted that Mr Esberger had
attempted suicide and had self-harmed in the last 12 months, but he had no present
thoughts of suicide or self-harm. He also noted that Mr Esberger had a diagnosis of
bipolar disorder and a history of substance misuse.
3. In the early hours of 12 November, Mr Esberger began ringing his cell bell and
making odd statements. A nurse was called to see him. She noted concerns about
his mental health and referred him to the prison’s mental health team. Mr Esberger
continued to behave oddly through the rest of the morning and early afternoon, but
by about 4.00pm, he had settled and was noted to be calmly eating his evening
meal. At least one officer speculated that Mr Esberger’s earlier behaviour might
have been due to him using an illicit substance.
4. Later that evening, Mr Esberger began behaving in an unusual manner again and a
smell of faeces was noticed coming from his cell. Mr Esberger was due in court for
a remand hearing on the morning of 13 November, but when officers went to collect
him, he would not get out of bed or respond to them. The officers noticed blood
smeared on the cell floor and walls. A supervising officer (SO) asked the orderly
officer to intervene but was told that it was his responsibility to open an ACCT and
to deal with the problem.
5. Another SO telephoned to ask for a mental health nurse to check Mr Esberger, but
when she went to see him at about 4.00pm, officers told her that he had settled
down and was cleaning his cell. The nurse accepted what she was told and did not
check Mr Esberger.
6. Mr Esberger’s behaviour became more extreme on the morning of 14 November
and he was seen crawling naked on his cell floor, making hissing noises.
Arrangements were made for him to move to the prison’s Wellbeing Unit for
enhanced support and he went there at about 2.00pm.
7. Mr Esberger walked unaided to the Wellbeing Unit, although the officers who
accompanied him noticed that his breathing was laboured. After being called to
check Mr Esberger, a nurse immediately recognised that he was very unwell and
she called for an emergency ambulance.
8. At hospital, Mr Esberger had a cardiac arrest and while being treated, plastic cutlery
was found in his gullet and windpipe and a ballpoint pen was found lodged in his
ear, which had penetrated his neck. Mr Esberger remained on life support in
hospital until he died in the early morning of 11 January 2021.
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Findings
9. The supervising officer who found that Mr Esberger had apparently harmed himself
had to be reminded by the orderly officer that it was his responsibility to start ACCT
procedures.
10. Staff failed to promptly and thoroughly explore whether Mr Esberger had taken an
illicit substance or was suffering a psychotic episode. There was also a failure to
explore whether Mr Esberger might have smeared faeces in his cell as a dirty
protest.
11. The delivery of care for Mr Esberger lacked urgency and co-ordination. Had Mr
Esberger been thoroughly reviewed earlier he might have been sent to hospital at
an earlier stage.
12. We have seen no evidence from CCTV that Mr Esberger was given any meals on
13 November.
Recommendations
• The Governor should ensure that all staff understand their responsibility to
immediately open an ACCT if they hear or observe anything to suggest a person
might be at risk of self-harm or suicide.
• The Governor and the Head of Healthcare should ensure that:
• prompt and thorough investigations are made when a prisoner is thought to
have taken an illicit substance, committed an act of self-harm or started a
dirty protest.
• mental health or general nurses are called to assess concerns about
prisoners’ health and well-being and,
• nurses always undertake their own assessment of a prisoners’ condition and
do not accept an officer’s evaluation that the prisoner is apparently well.
• The Governor should ensure that officers record when a prisoner refuses a meal,
record the reason for the prisoner’s refusal and offer the prisoner a doctor’s
appointment.
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The Investigation Process
13. The investigator issued notices to staff and prisoners at HMP Hull informing them of
the investigation and asking anyone with relevant information to contact her. No
one responded.
14. The investigator obtained copies of relevant extracts from Mr Esberger’s prison and
medical records. She watched CCTV footage for the evening of 9 November 2020,
for the daytime of 10 November and from 9.00am on 11 November to 1.00pm on 14
November: She was not provided with CCTV for the final hour of Mr Esberger’s
time on G wing. She also watched Body Worn Camera Footage for Mr Esberger’s
move from G wing to the Wellbeing Unit. The investigator interviewed 17 members
of staff between January and April 2021. All of the interviews were conducted by
telephone or video calls due to the COVID-19 pandemic.
15. NHS England commissioned a clinical reviewer to review Mr Esberger’s clinical
care at the prison. The investigator and clinical reviewer jointly interviewed clinical
staff.
16. We informed HM Coroner for Hull and East Riding of Yorkshire of the investigation.
The Coroner gave us the results of the post-mortem examination. We have sent
the Coroner a copy of this report.
17. Our family liaison officer wrote to Mr Esberger’s mother to explain the investigation
and to ask her if she had any matters she wanted the investigation to consider. Mr
Esberger’s mother asked the following questions, which we have answered in this
report and in separate correspondence:
• What information did the police give the prison about her son’s mental
health?
• Why was she not told that her son was not fit to attend court on 13
November?
• Why had she not been told sooner that her son had been taken to hospital?
18. We issued our initial report on 19 April 2022. Discipline staff at Hull raised a
number of concerns about the criticisms in our report and on two of our
recommendations. We have revised our initial report to include further discussion
to support some of our criticism. We have removed our criticism and
recommendation on family liaison, however we have retained our criticism and
recommendation on food refusal.
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Background Information
HMP Hull
19. HMP Hull is a local prison that holds just under 1,000 men in ten wings. At the time
Mr Esberger was at Hull, Healthcare services, including mental health services,
were provided by City Healthcare Community Partnerships (CHCP).
20. The prison has a Wellbeing Unit to support prisoners with complex needs, which
are difficult to meet in the normal prison environment.
21. During an inspection of healthcare services in November and December 2020, the
Care Quality Commission (CQC) identified various concerns which included
reduced staffing levels that was impacting on patient care. CQC carried out a
follow-up inspection in July 2021 to check if improvements had been made. At this
inspection, CQC found further concerns which included ineffective triage of
applications for healthcare appointments and urgent need was not always identified
and acted upon. CQC found there was a significant backlog of patients requiring
mental health assessment and that staffing pressures continued due to staff
vacancies. CQC issued a requirement notice for CHCP to explain the action it
would be taking to address the deficiencies. At a further follow-up inspection in
March 2022, CQC found some improvements in delivery of care, but many
concerns remained.
22. In August 2022, CHCP ceased providing healthcare services at HMP Hull and were
replaced by Spectrum Community Health.
HM Inspectorate of Prisons
23. HM Inspectorate of Prisons most recent inspection of HMP Hull was in July 2021.
Inspectors found healthcare services were weak and failing in some critical areas.
Inspectors noted that they lacked confidence that there was sufficient oversight and
governance of partnership working, that there were staffing vacancies across all
clinical disciplines and that mental health services were not properly resourced.
24. Inspectors found that interactions between officers and prisoners were generally
helpful and courteous and it was evident that the relatively stable and experienced
staff group had sound knowledge of prisoners in their care. However, inspectors
also noted that on some wings, staff remained remote and disengaged.
Independent Monitoring Board
25. Each prison has an Independent Monitoring Board (IMB) of unpaid volunteers from
the local community who help to ensure that prisoners are treated fairly and
decently. In its latest annual report for the year to 28 February 2021, the IMB noted
that the COVID-19 pandemic had had an obvious impact on healthcare services
with additional pressure on existing nursing staff to carry out day to day clinical
work.
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Previous deaths at HMP Hull
26. Mr Esberger was the 11th prisoner to die at Hull since January 2019. Of the
previous deaths, four were self-inflicted, five were from natural causes and one was
unascertained.
27. In our investigation into a self-inflicted death at Hull in September 2019, we found
that the prison failed to conduct a full mental health assessment. We
recommended that the prison’s mental health triage process should be monitored
and reviewed frequently. The prison accepted our recommendation and said that
the mental health triage process would be reviewed and monthly audits would be
carried out.
28. In another investigation into the death of a prisoner at Hull in April 2019, we found a
failure by healthcare staff to review significant medical symptoms. We
recommended that appropriate assessments were completed in a timely manner
and that ongoing health needs were met. The prison accepted our
recommendation and said that the long term condition Standard Operating
Procedure had been reviewed and updated. Templates had also been updated,
which was underpinned by NICE guidance.
29. It is disappointing that we are having to raise the same concerns and repeat our
recommendations about these issues in this report.
Assessment, Care in Custody and Teamwork
30. Assessment, Care in Custody and Teamwork (ACCT) is the care planning system
the Prison Service uses for supporting and monitoring prisoners assessed as at risk
of suicide and self-harm. The purpose of the ACCT process is to try to determine
the level of risk posed, the steps that might be taken to reduce this and the extent to
which staff need to monitor and supervise the prisoner. Levels of supervision and
interactions are set according to the perceived risk of harm. There should be
regular multidisciplinary case reviews involving the prisoner. Guidance on ACCT
procedures is set out in Prison Service Instruction (PSI) 64/2011.
Food refusal
31. HMP Hull has a safety briefing document on food refusal. The document explains
that the prison needs to do all it can to address any issues that might be driving the
refusal and states that it is vital that the events are properly recorded. Specific
guidance includes that the duty Governor should be informed immediately as soon
as staff are aware that a prisoner is refusing food, and the prisoner should be
offered a doctor’s appointment to assess their mental health capacity.
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Key Events
32. On 9 November 2020, Mr Joshua Esberger was remanded to prison at HMP Hull
charged with assault, threatening behaviour, possession of an offensive weapon,
possession of a class B drug and failing to comply with the requirements of a
community order. This was not Mr Esberger’s first time in prison custody.
33. Information included in Mr Esberger’s Person Escort Record (a record that is
completed when a person is transferred from one custodial setting to another) said
that Mr Esberger had self-harm warnings over the past several years and had self-
harmed by cutting himself within the last month. The PER also noted that Mr
Esberger had shown signs of mental disorder and that he had said he had been
diagnosed with psychosis and bipolar disorder.
34. On arrival at Hull, a reception nurse saw Mr Esberger for an initial health
assessment. Mr Esberger said that he had attempted suicide and had harmed
himself in the last 12 months, but that he had no present thoughts of suicide or self-
harm. He said that he had a diagnosis of bipolar disorder, although he was not
taking medication. He also said that he had a history of cannabis misuse. His
clinical records included references to other illicit drug use, including cocaine. The
nurse also noted that Mr Esberger had injured his hand while in police custody.
35. Mr Esberger told a reception officer that he had been remanded into custody for
offences from two years before and he had punched the wall at court and injured
his hand. He said that he had hit the wall in frustration not because he wanted to
harm himself. The officer noted that Mr Esberger seemed well, seemed confident,
had asked a lot of questions and gave no cause for concern. Mr Esberger declined
the offer to be referred to the prison’s substance misuse team and said that he was
hopeful of getting bail at his next court appearance on 13 November.
36. Mr Esberger was moved to G wing, where newly arrived prisoners spent their first
two weeks in quarantine from the general prison population as part of Prison
Service measures during the COVID-19 pandemic.
12 November
37. At around 4.00am on 12 November, Mr Esberger began ringing his cell bell. The
night officer noted that Mr Esberger was making odd statements. He said that he
was an undercover officer with the CIA, that there were explosives over the wing
and that there was petrol in his cell and he was going to burn down the prison. The
officer also noted that there was a very strong smell of faeces and urine coming
from his cell and the officer later noted liquid and small solids outside the cell door.
38. Just after 5.40am, a nurse noted that she had been called to see Mr Esberger as
wing officers were concerned that he appeared delusional. She noted that Mr
Esberger admitted to having mental health problems, but he would not speak to her
about the problems. She noted that she did not have concerns that Mr Esberger
was at risk of harming himself, but was concerned about his psychological
presentation. She referred him to the prison’s mental health team.
39. At around 10.20am, a Supervising Officer (SO), went to G wing after officers rang
him to say that they were concerned about Mr Esberger’s behaviour. The SO told
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the investigator that he went to Mr Esberger’s door but Mr Esberger was screaming
and shouting abuse and he was unable to calm him down to hold any conversation.
The SO made an entry in Mr Esberger’s records to say that he had not previously
raised any concerns so it was possible he had taken an illicit substance. The SO
told the investigator that he spoke to the mental health team and they confirmed
that Mr Esberger had already been referred to them for assessment.
40. An officer told the investigator that on 12 November he had spent a lot of time
talking to Mr Esberger. He had initially been behaving irrationally by throwing water
around his cell, saturating his clothes and bedding and had damaged his television.
The officer said that he managed to calm Mr Esberger down by asking him about
his family. Once he had calmed, he told Mr Esberger that if he would agree to tidy
his cell the staff would give him replacement clothing and bedding and another
television. The officer said that by the time he left the wing at 4.00pm, Mr Esberger
was calm and was eating his evening meal.
41. An officer on duty that night recorded that from early on in the evening, Mr Esberger
began making a lot of noise and was making strange comments. The officer noted
that at around 9.00pm, there was a strong smell of faeces and urine coming from
the cell and it seemed that Mr Esberger had started a dirty protest (a dirty protest is
where a prisoner deliberately smears faecal matter on himself and/or over his cell in
protest about his treatment). The officer placed a screen in front of the door to
prevent Mr Esberger throwing faecal matter onto the landing.
13 November
42. At around 6.40am on 13 November, an SO went to G wing to collect several
prisoners, including Mr Esberger who were due to attend court that day. The SO
said that when he got to the wing he was told about the developments overnight.
He went to Mr Esberger’s cell, opened his door and tried to speak to him about his
court appearance. The SO said that Mr Esberger was lying in bed and would not
speak to him. The SO looked around the cell and noted that there was a small
amount of blood on the cell floor and some dried blood smeared on the walls.
There was a smell of urine in the cell, but no sign of a dirty protest.
43. The SO telephoned a Custodial Manager (CM), who was the orderly officer (the
operational manager in charge of the prison). The SO said that he asked the CM to
bring some response officers (officers dressed in protective clothing) and discuss
with the duty response nurse the interventions needed for Mr Esberger. The SO
went to reception to discharge the prisoners due in court that day and he then went
to I and J wing for the staff handover.
44. The CM told the investigator that when the SO contacted him, he asked if it was an
emergency situation, but the SO said that it was just that he was busy with other
duties. The CM told the SO that he was busy too and that it was the SO’s
responsibility to deal with the situation.
45. Another SO (the second SO) arrived on G wing for duty on the morning of 13
November. An officer told him that the first SO had asked her to start suicide and
self-harm procedures for Mr Esberger (the procedures also known as ACCT). The
second SO telephoned the first SO to tell him that it was his responsibility to start
ACCT procedures as he was the person who had cause for concern.
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46. At 8.10am, the first SO started ACCT procedures noting that he had seen blood in
Mr Esberger’s cell giving concerns that he had self-harmed. He also noted that Mr
Esberger had displayed unusual behaviour and talk. He set Mr Esberger’s
observations at one an hour.
47. The first SO said that the staff handover meeting and records showed that Mr
Esberger had been displaying bizarre behaviour, but it was unclear whether it was
drug induced behaviour or behaviour due to mental health issues. The first SO
telephoned the CM to ask if Mr Esberger would be moving to the Wellbeing Unit for
observation. The CM told him that he could not make that decision and that he (the
first SO) should contact the prison’s mental health team. He telephoned the mental
health team and was told that someone would come to check Mr Esberger later that
day.
48. There is no entry in Mr Esberger’s medical record further to a nurse’s mental health
referral for well over 24 hours, but at 12.06pm on 13 November an entry was made
that he had been triaged as an urgent referral and was high priority due to the
concerns about his presentation.
49. The first SO said that at around 1.30pm, he telephoned a CM who had taken over
as orderly officer and then telephoned healthcare staff again in the early afternoon
to remind them that Mr Esberger still needed to be seen. The first SO said that at
just after 3.30pm, he looked into Mr Esberger’s cell and saw that it was clean and
that the bedding was folded on the bed. Mr Esberger noticed him and lifted his
hand to acknowledge his presence. Around ten minutes later, a mental health
nurse came to the wing. The first SO updated the nurse on Mr Esberger’s apparent
improvement. The first SO said that the nurse asked him if it was worth her while
seeing Mr Esberger, but he told her that it was her decision.
50. The nurse told the investigator that on 13 November, the mental health team were
short staffed when she received a message to see Mr Esberger. She asked if it
was urgent and from what she was told, it did not sound as if the staff were overly
worried. She said that she asked colleagues if they had capacity to help, but they
were all struggling with their workloads. She said that she had to go to the
segregation unit at 4.00pm for an ACCT review, so on her way she called in to G
wing and met the first SO. He told her that Mr Esberger was much different to
earlier, he had settled and was cleaning his cell door observation panel. She said
that the first SO was no longer concerned that Mr Esberger was at risk. The nurse
noted in Mr Esberger’s clinical record that he had a history of extensive substance
misuse and it seemed that his behaviour might be drug induced. She noted that an
ACCT had been opened, but that he was considered to be at low risk of suicide.
She also noted that he was due to have a formal mental health review on 15
November. The nurse accepted the information that the initial concerns about Mr
Esberger were resolved and she did not check him herself.
51. Entries in Mr Esberger’s ACCT through the evening and night included references
to him rummaging through paperwork and rubbish, looking out of the window and
talking to himself.
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Events of 14 November
52. An officer on duty on G wing overnight noted that Mr Esberger slept for part of the
night, but at 5.01am, he was awake and “back to talking/arguing with himself”.
53. At 6.35am and 7.20am, the officer made entries in Mr Esberger’s ACCT and
recorded that he was crawling naked on his cell floor, speaking to himself, and
making hissing noises.
54. In a statement to the duty Governor, another SO (the third SO) wrote that his
officers were very concerned about Mr Esberger’s wellbeing and that he went to
see him at about 10.00am. Mr Esberger was sitting on his chair; he was naked and
was talking to himself. The third SO wrote that Mr Esberger looked clearly unwell.
As there were no mental health nurses on duty at Hull, the third SO telephoned a
mental health nurse at HMP Humber for a contribution to the ACCT process, while
also telling her that it was clear that Mr Esberger was not well enough to engage in
the process.
55. At around 10.30am, the third SO discussed with a colleague moving Mr Esberger to
the Wellbeing Unit. The investigator was told that there were a lot of prisoners on
the Wellbeing Unit so some adjustments were needed and it was agreed for Mr
Esberger to be brought to the unit after lunch.
56. Further ACCT entries in the late morning and early afternoon that day referred to Mr
Esberger lying on his bed and being offered, but declining lunch. An officer told the
investigator that it was difficult to understand what Mr Esberger was saying that
morning. He said that Mr Esberger was wheezing and he had blood or pus around
his ear.
57. At around 2.00pm, the third SO and a colleague went to Mr Esberger’s cell to escort
him to the Wellbeing Unit. They asked Mr Esberger to put on some clean jogging
bottoms, a T-shirt and flip-flops, but Mr Esberger seemed to struggle to understand
and his breathing was described as shallow and laboured. The investigator was
told that it was a five minute walk from G wing to the Wellbeing Unit and Mr
Esberger was able to complete the walk without the need to call for a wheelchair.
58. The investigator viewed body-worn camera footage of the visit to Mr Esberger’s cell
and of the beginning of the walk to the Wellbeing Unit. Mr Esberger did not appear
physically unwell and there were no obvious signs of injury or blood stains on his
body. However, staff had to repeat his instructions many times and there was no
evidence to suggest that Mr Esberger was deliberately disregarding instructions.
59. Mr Esberger arrived on the Wellbeing Unit at 2.10pm. He was taken for a shower
and was noted to have constantly spat phlegm from his chest.
60. At around 2.40pm, an officer went to Mr Esberger’s cell to give him a drink and to
speak to him about how he had sustained various injuries that he had to his face,
torso and legs. She officer noted that Mr Esberger was bleeding from his ear and
his breathing was very laboured. Mr Esberger said that he had had a “funny turn” in
his cell and had fallen. He also said that he thought he might have COVID-19.
61. An SO had spoken to a nurse to ask her to check Mr Esberger, and she arrived
while an officer was speaking to him. The nurse said that the moment she saw Mr
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Esberger she recognised he was very unwell and she told the officers to call an
emergency ambulance, which arrived in around ten minutes.
62. After assessing Mr Esberger, the paramedics took him to Hull Royal Infirmary
where he arrived at 3.37pm. At hospital, Mr Esberger was found to have a rapid
heart rate, low blood oxygen concentration and he was noted to be confused. Mr
Esberger then had a cardiac arrest and his heart stopped beating for ten minutes.
While being treated, a plastic spoon and fork were found in his upper aero-digestive
tract (gullet and windpipe). He also had a ballpoint pen inserted through his right
ear, which caused a penetrating injury to his neck. The items were removed and he
received treatment for various complications.
63. Mr Esberger remained in hospital and at 6.25am on 11 January 2021, it was
confirmed that Mr Esberger had died.
Contact with Mr Esberger’s family
64. At around 9.00pm on 14 November, the prison contacted a family liaison officer
(FLO) at his home and told him that Mr Esberger had been admitted to hospital and
that he was likely to die. The FLO was told that there was no recorded next-of-kin
for Mr Esberger, but that the prison would contact Humberside Police for help in
identifying the family. (Mr Esberger had in fact given the prison his mother’s
address and telephone number). The FLO went into the prison and was given a
mobile telephone number that had been identified for Mr Esberger’s mother. An
officer telephoned Mr Esberger’s mother at just after 10.00pm to tell her that her
son was in hospital and was seriously unwell. Mr Esberger’s mother went to the
hospital that evening and spoke to hospital staff.
65. The prison contributed to the cost of Mr Esberger’s funeral in line with national
guidance.
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Support for prisoners and staff
66. Following Mr Esberger’s death, a prison governor, debriefed the bedwatch officers
who had been with Mr Esberger in his final hours. The prison care team also
offered support.
67. The prison posted notices informing other prisoners of Mr Esberger’s death, and to
offer support. Staff reviewed all prisoners assessed as being at risk of suicide or
self-harm in case they had been adversely affected by Mr Esberger’s death.
Post-mortem report
68. The pathologist gave Mr Esberger’s cause of death as pneumonia caused by
hypoxic brain injury and cardiac arrest.
69. The pathologist said that the sequence leading to Mr Esberger’s death was that he
sustained a cardiac arrest at hospital, which starved his brain of oxygen resulting in
hypoxic brain injury. In turn, this led to him developing pneumonia that ultimately
resulted in his death.
70. The pathologist also said that the two likely scenarios leading to Mr Esberger’s
cardiac arrest were either that it followed from him developing a severe infection
from the penetrating injury to his neck or was as a consequence of an upper airway
obstruction from the plastic cutlery. The pathologist said that he did not consider it
possible from the post-mortem findings alone to differentiate between the two
possibilities he had identified. He added that the cardiac arrest might have been
due to both problems.
71. No blood samples were taken for toxicological examination when Mr Esberger first
arrived at hospital, so we do not know if he had taken any drugs.
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Findings
Response to Mr Esberger’s unusual presentation
72. When Mr Esberger arrived in Hull on 9 November, he told a reception officer that he
was frustrated at having been arrested, but he presented as being confident and he
said that he was hopeful of being bailed at his court appearance on 13 November.
73. Nothing of note occurred in the next few days, but from around 4.00am on 12
November, Mr Esberger began acting strangely and officers noticed a smell of
faeces coming from the cell. A general nurse referred Mr Esberger to the mental
health team as she was concerned about his psychological well-being. An
appointment was made for Mr Esberger to have a mental health review on 15
November. Mr Esberger appeared to have settled by about 4.00pm and there was
some thought that his earlier behaviour had been due to him possibly taking an illicit
substance. Mr Esberger again began to behave oddly from around 9.00pm on 12
November and there were thoughts that he might have started a dirty protest,
although he made no comments or any reference as to what he might have been
protesting about.
74. Prison Service Instruction (PSI) 64-2011 says that a member of staff who sees or
observes behaviour which may indicate a risk of self-harm or suicide must open an
ACCT. When an SO went to collect Mr Esberger for his court appearance, he
deemed Mr Esberger unfit for court and was concerned for his wellbeing. The SO
subsequently opened an ACCT, after the CM made it clear to him that it was his
responsibility to open the ACCT.
75. At hospital, Mr Esberger was found to have attempted to swallow plastic cutlery,
which remained lodged in his aero-digestive tract. He was also found to have
inserted a ballpoint pen through his ear, which had penetrated his neck. We do not
know when Mr Esberger swallowed the cutlery or inserted the pen. Staff had no
reason to believe that he deliberately wanted to harm himself, and in particular to
harm himself in such an extreme manner. We are concerned about the lack of
ownership and co-ordination in Mr Esberger’s care and management. The
investigation showed some tension between the SO and the CM on the initial
opening of an ACCT and the responsibility for arranging an investigation into
whether or not Mr Esberger had started a dirty protest or whether he had harmed
himself.
76. We are also concerned that when a nurse visited G wing on the afternoon of 13
November, she accepted an SO’s word that Mr Esberger had settled and was
cleaning his cell and she did not check him herself. The nurse indicated that she
would act differently in future. We acknowledge that the nurse was busy, but she
had been specifically called to G wing to check Mr Esberger and we consider that
she should have seen Mr Esberger in person and made her own assessment about
his well-being and presentation.
77. On reviewing the body-worn video camera footage, the investigator noticed nothing
of striking concern, but we note that a nurse recognised immediately that Mr
Esberger was unwell. Again, we cannot determine the point in time when the
deterioration in Mr Esberger’s condition would have been evident to a clinician, but
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that underlines how important it was for him to have been properly and promptly
reviewed by a clinician inside his cell and assisted by response officers.
78. It is unclear how many times Mr Esberger might have been offered meals which he
either declined or refused. From her extensive review of the CCTV recordings as
detailed in paragraph 15, the investigator saw no evidence that Mr Esberger was
given a meal on 13 November, nor is there a record indicating that he refused or
declined any meals that day. If Mr Esberger had swallowed the cutlery by that time,
this would account for him not wanting to eat. We acknowledge that it is not routine
for prisons to record when a prisoner simply declines a meal, as a prisoner might
decline solely because they are not hungry. However, our concern in Mr Esberger’s
case is whether staff were engaging with him. Had staff explored with him his
reason for refusing or declining meals that day, in line with the prison’s safety
briefing document, this might have prompted them to ask a clinician to come to see
him. We consider that this was a missed opportunity for a clinician to review Mr
Esberger.
79. We fully acknowledge the efforts made by discipline staff in trying to obtain
engagement with mental health staff and we note that there was no-one from the
mental health team on duty on 14 November so contact was made with a mental
health nurse at another prison. We also note that it was the discipline staff who
made the decision to move Mr Esberger to the Wellbeing Unit. However, despite
the staff efforts in this regard we remain concerned about the staff engagement with
him and whether they could have escalated their concerns with the mental health
team or considered other options.
80. We make the following recommendations:
The Governor should ensure that all staff understand their responsibility to
immediately open an ACCT if they hear or observe anything to suggest a
person might be at risk of self-harm or suicide.
The Governor and the Head of Healthcare should ensure that:
• prompt and thorough investigations are made when a prisoner is
thought to have taken an illicit substance, committed an act of self-
harm or commenced a dirty protest.
• mental health and/or general nurses are called to assess concerns
about prisoners’ health and well-being, and
• nurses always undertake their own assessment of a prisoners’
condition and do not accept an officer’s evaluation that the prisoner is
apparently well.
The Governor should ensure that officers record when a prisoner refuses a
meal, record the reason for the prisoner’s refusal and offer the prisoner a
doctor’s appointment.
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Clinical care
81. The clinical reviewer concluded that the healthcare Mr Esberger received at Hull
was of a mixed standard and was not wholly equivalent to that which he could have
expected to receive in the community.
82. The clinical reviewer noted that waiting times at Hull for mental health assessments
were lengthy and were not in line with the timescales agreed within the contract for
services: in Mr Esberger’s case his was an urgent referral so he should have been
seen by the mental health team within 48 hours. The clinical reviewer noted that at
interview, the nurse said that urgent referrals were being seen in around one week.
The clinical reviewer noted the missed opportunity for the nurse to have assessed
Mr Esberger on 13 November, and that he was not seen by the mental health team
before his emergency admission to hospital.
83. The clinical reviewer has recommended that the Head of Healthcare should review
the waiting times for mental health services and should formulate an action plan to
ensure waiting times are in line with agreed performance standards. The clinical
reviewer has also made a recommendation about delivery of the secondary
reception healthcare screen.
84. We share the clinical reviewer’s concerns about provision of care at Hull. We note,
however, that City Healthcare Community Partnerships ceased to provide services
at Hull in August 2022 so we make no separate recommendation of our own.
Informing Mr Esberger’s next-of-kin
85. Prison Rule 22 requires prisons to inform the next of kin immediately if a prisoner
becomes seriously ill. Prison Service Instruction (PSI) 64/2011 gives instructions
on liaising with families of prisoners who have harmed themselves or have died
while in custody.
86. Mr Esberger was taken to hospital by emergency ambulance at 3.22pm on 14
November, but his mother was not informed that her son was in hospital until just
after 10.00pm that evening. She was informed by the FLO, who had been called at
home to come into the prison to help identify the next-of-kin having been told that
there were no details in Mr Esberger’s records.
87. Although Mr Esberger had named his mother as his next of kin and gave the prison
her address and telephone number on arrival at Hull, these had been recorded in
his paper documents that were not available at that time in the evening. The only
document available to the FLO was Mr Esberger’s electronic NOMIS record and
that did not contain next of kin details.
Inquest
88. At an inquest held on 12 June 2024, an inquest jury concluded that Mr Esberger’s
death was due to pneumonia caused by hypoxic brain injury following cardiac arrest
caused by airway obstruction.
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