Update 10/09/12 >>> This blog was written prior to September 2012. On the 10th September, the law was ammended and a summary of the relevant changes can be read here.
The bulk of this post remains valid, the main change being that the wording of the test for police disclosure of any discretionary information has changed that the police must “reasonably believe” the disclosure to be necessary; AND there is now a right of appeal for review, against that disclosure to the employer.
When time allows, I will fully review this post to bring it up to date without multiple preceding notes.
Update 14/07/12 >>> Since writing this blog, people who know more about the CRB side of things have made comments, below. I’d encourage you to read them from a former senior police officer who used to authorise disclosures; and from someone knowledgeable about changes coming in later in the year. I’m grateful to both for adding to the debate.
I have been asked about Criminal Records Bureau checks and police detentions under section 136 of the Mental Health Act several times on twitter so I have decided a blog is the only way to reasonably explain my answers because the 140 character limit demands welcome brevity on a lot of occasions but also prevents a complex argument being able to be made clearly.
BACKGROUND ON CRB CHECKS
Firstly, I am no expert on CRB checks so I’d encourage you to read more for yourself. I can outline that the bureau itself is an agency of the Home Office and exists “to help employers make safer recruitment decisions.” There is a helpful factsheet about “eligible positions” published by the Home Office which shows the types of job which come under the statutory purview of CRB checks.
There are two types of check: basic and enhanced. A basic CRB check is for disclosure of convictions and cautions only and even then, it is subject to the Rehabilitation of Offenders Act 1974. After a relevant period, most convictions become considered ‘spent’ and would not be disclosed. The period of time until they are ‘spent’ varies by offence type and obviously, there more serious the crime and the more serious any sentence given, the longer the period until ‘spent’.
The only convictions which never become spent are those which attracted life in prison, those which lead to a sentence of imprisonment greater than two and a half years and those involving preventative detention – this means a criminal sentence of preventative detention and does not include MHA detention. A sentence to a hospital order (under s37 MHA) is ‘spent’ 2 years after discharge from it, or 5 years after sentence to it. Again, we should remember that a hospital order is imposed only after being prosecuted in the criminal courts.
Enhanced checks are undertaken for those working with children or vulnerable adults in a regulated activity, also for appointments connected to security and the law. I have had two CRB checks in my lifetime, one when I joined the police service and one when I started coaching rugby at my son’s rugby club because of my access to the boys in that group. Both were enhanced checks. Enhanced checks offer the opportunity to disclose additional, relevant information known to the police or other authorities which may have bearing on an employment decision and this is not restricted to convictions / cautions. This could include details of mental health detention, if considered that it might be relevant. It could also include information about arrests for offences which did not lead to prosecution.
There is one other authority to mention by way of background which is of relevance to a broader background about CRB checks and employment suitability: the Independent Safeguarding Authority. The ISA maintain a list of those who are barred from working with children and vulnerable adults and refer information or evidence about relevant individuals to the police or other authorities if it believes that such a person is attempting to seek such work.
SECTION 136 CRB CHECKS
Alastair Campbell touched on this subject in a guest blog by Eileen O’Hara whilst campaigning for greater awareness of mental health issues. The blog is well worth a read as background to the potential impact upon a service user of a mental health related disclosure, setting out the impact of enhanced CRB check.
- Does disclosure of s136 or MH detention have the potential to massively discriminate unfairly? – absolutely.
- Should previous detention under s136 always be disclosed? – absolutely not.
- Should previous detention in hospital under the MHA always be disclosed? – absolutely not.
- Does disclosure have the potential to destroy access to one of the most important rehabilitative opportunities? – absolutely.
So given that a s136 Mental Health Act detention is NOT a conviction or caution, is it ever necessary to disclose it. Unfortunately, yes it is, in my opinion.
I’ve written about section 136 MHA on this blog more than upon any other subject within my area of interest. This authority for police officers to detain can be used in a range of situations and it is these contexts that are key to understanding any potential decision to disclose it on an enhanced check.
- Some s136 detentions involve no criminal offence whatsoever being committed by the individual – it is used purely in relation to someone at risk and in need of care and assessment in their own interests. <<< These detentions would need extremely careful consideration for disclosure. Obviously, that still covers a broad range of situations and of course, the relevance of any s136 situation would diminish over time.
- Some s136 detentions involve the commission of lower level, minor criminal offences which are set aside by the officer at the point of deciding what they should arrest for. <<< These detentions would need careful consideration too, especially where the assessment received took that person into a pathway of care and support.
- Some s136 detentions involve the commission of more serious offences, but because of circumstances or a desire on the part of the officer to prioritise a recognised mental health issue, the s136 route is chosen for assessment of need before decisions about the criminal offence.
Each of these links to the broader debate about criminalising people and to whether we should look at things as ‘black / white’, or ‘health / crime’. I’ve consistently argued on this blog that this area can be clear-cut, but that we should view many situations as a shade of grey. Somewhere in there, each of us will have our view as to where a line should be drawn. It is precisely because of that I would welcome clearer guidelines about mental health related disclosure in enhanced CRB checks.
WHEN MIGHT IT BE NECESSARY TO DISCLOSE?
In some situations of s136 Mental Health Act being used, it is clear that the circumstances amount to an obvious risk to other people. The definition of s136 itself talks about “care or control, in that person’s own interests or for the protection of others.” In the debate on twitter, I suggested a few circumstances where disclosure may be needed:
1 – Someone was arrested for an offence but diverted which involved weapons or sexual offending
2 – The circumstances amounted to neglect of vulnerable people, ie children or the elderly.
It should also be borne in mind that police officers disclosure other medical information and other non-conviction based information during enhanced checks. Specifically, someone’s fitness to drive may be affected by certain medical conditions and where concerns exist, for example following the policing of traffic collision, officers often inform the DVLA of information found during investigations. Furthermore, in the case of R (on the Application of X) v Chief Constable of the West Midlands Police (Court of Appeal, 2004), Lord Woolf made it clear that a Chief Constable was under a duty to disclose information “if it might be relevant.” Note the emphasis on might, rather than is. Of course, anything might be relevant to anything else, but decisions taken to disclose have to be consistent with other legislation, including disability discrimination and Human Rights legislation.
Only the employer can fully understand the relevance of a disclosure to their advertised vacancy and to any decision to employ and obviously there is a clear potential for prejudice. The Supreme Court case R (on the Application of L) v Commissioner of Police for the Metropolis (Supreme Court, 2009) upheld the view given in the 2004 case whilst showing that Human Rights legislation is engaged when making decisions to disclose.
Therefore, by law, it is the duty of the police to disclose in a balanced way that which might be relevant and it is the duty of the employer to decide the relevance of that disclosure. I know that I say this a lot, but it remains true in this debate >>> we may or may not agree with this as being the correct way to deal with things, but it is the law as it stands today. It is therefore not the case that the police hold power over employment decisions: these still ultimately rest with employers and we are therefore in the territory of talking about our whole society’s discrimination against people who have suffered mental ill health.
I would like to see all forces examine their approach to s136 disclosure and perhaps even see a broader review on all Mental Health Act disclosure. The Alastair Campbell blog by Eileen O’Hara focusses upon disclosure of her time in a psychiatric unit receiving treatment for bipolar disorder, rather than upon a s136 detention. She goes on to point out that the disclosure did not affect this employment opportunity because the employer decided it was of no relevance. (It is worthy of note that she was seeking employment with a mental health charity, more alive to the issues implied by this debate.)