Section 136 and CRB Checks

*** THIS POST IS NOW OUT OF DATE ***

Update  10/08/2015 >>> This blog was written prior to legal changes introduced in September 2012 and prior to new statutory guidelines in August 2015.  A summary of the relevant 2012 changes can be read here and a BLOG on the 2015 guidelines here.

The post remains here, unchanged, merely for historical curiosity and in case of interest in how the system developed.

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.

DISCLOSURE POLICIES

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.)

____________________________________________________________________
The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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19 thoughts on “Section 136 and CRB Checks

  1. This is a very well balanced blog. As a former authorising officer for enhanced CRB disclosure (and with an interest in mental health issues) I was very concerned about a) what mental health related information was to be disclosed and b) how the receiving agency would interpret it. Information that disclosed a previous episode of mental ill health should not ordinarily be released even though an arrest and some form of offence may be present. However, any presence of a previous risk to others cannot be disregarded and should ordinarily be disclosed. I avoid talking in absolutes as each case much be decided on it’s merits and then summarised in plain English if it is to be disclosed. I can assure all readers that all the authorising officers I have met take these responsibilities very seriously. I cannot however give any assessment as to how receiving agencies treat disclosures of any sort. The disclosing side and the receiving side are totally disconnected. My suspicion is that most receiving agencies are risk averse and therefore any disclosure may be a bar to employment. Some forces have tried to engage CRB in a dialogue on this issue but I understand the reaction from CRB was guarded. Meanwhile I suspect many individuals feel aggrieved.

  2. Mental Health Cop this is an excellent blog, and I feel that it answers many of the queries that an applicant may have. I would like to add that as a result of the recent review of the criminal records regime the decision to disclose other relevant information at chief officer’s discretion has been raised to a much higher threshold. the chief officer should disclose information that they reasonably believe relevant and therefore ought to be included. in addition statuatory guidance has been produced for chief officers and the area where most debate and attention appears to be the issue of disclosing mental health incidents. The guidance aims to ensure chief officers are making more consistent disclosure decisions.There has been case law since L vs Commissioner of the Metropolis including a case related to mental health disclosures and it is most likely that an applicant for an enhanced CRB will be afforded the opportunity to make representations before an employer or organisation has a chance to view it. In addition we will be moving to a system where the disclosure is issued first to the applicant and they will have the opportunity to dispute any issues raised on it before it being presented to the employer/organisation. These important changes will afford applicants much more control over the use of their private data. 

    Another change to vetting and barring is the reduction in scope of regulated activity. This means if “supervised”by a person working in regulated activity eg a teacher,then  a volunteer in a school or youth club,does not even legally need to have an enhanced CRB check. I noticed in the debates raised on twitter that a person expressed they could not work in a school unless it was empty. This would be an issue for that particular school which not reflective of how the system should operate.

    It is also important for applicants to bear in mind that many organisations  require individuals to complete a health declaration as part of the recruitment process and therefore recent incidents of ill health are likely to be disclosed through that channel.

    It is not perfect system, but unfortunately there are occasions where it is relevant to disclose issues relating to mental health, as you documented in your blog. The representations process will provide an applicant the opportunity to submit important information to the police for their consideration.

    The CRB forward members of the public,employers,the police,probation,NHS trusts and other organisations to my service for advice on safer recruitment. This Resettlement Advice Service is run by Nacro. We also provide training for organisations and advocacy support for individuals who face discrimination as a result of a criminal records check. We help thousands of people each year in this area.

    At present we are conducting a view of our service, but I hope that we will be able to produce some much needed guidance in this particular area of criminal records checks.

    1. This comment is extremely welcome and actually means what I’d have hoped to see happen is indeed happening, and this more specifically details it than I’d have hoped! 🙂

      As I said, I’m not a CRB expert but was simply unable to express myself sufficiently clearly on Twitter as to how the current system operates.

      You contribution is very welcome and I thank you for it. I will put an update at the top of the blog, ensuring people read this remark for future developments.

  3. Great blogpost, but one thing I feel that is missing… After many emails between the Home Office and my old social worker, I found out that it is possible to appeal disclosure that you feel is unfair or irrelevant. However, this can only normally be done after a CRB has flagged up a 136. I would have loved the chance to find out before a CRB was performed wether my mental health problems were going to be disclosed and then the right to challenge that information, before a job opportunity was at risk.

    1. Happy to add that to the comments – if you check out the others that were made, including by Dominic Headley you’ll see advance notification of potential disclosure is planned, with a right of appeal against irrelevance ahead of prospective employers being informed.

      Good news all round.

      1. What about voluntary admissions? I was told if I walked out of the hospital after my appointment with the crisis team, they’d ring the police and social services, so I voluntarily admitted myself. Would that show up on an enhanced crb check? (I was never a danger to anyone but myself)

      2. If the police were not involved in the admission, then they would not know the information you allude to and therefore could not disclose it.

        As a rule, there is no presumption that any MH information gets disclosed and there mere fact of someone’s admission to hospital would not automatically lead to disclosure. It is only where the matter is known to the police AND that where it is reasonably believed by the police that this is directly relevant to an application that a disclosure would be considered. Even then, following legal amendments in September 2012, there would be a right for job applicants to know what the police were proposing to disclose and appeal against it if they felt the police decision was not balanced or appropriate.

  4. Just a couple of points (apologies for the essay last time!) I would like to raise…
    Firstly – you mention offences being ‘spent’ after a certain period of time under the Rehabilitation of Offenders Act. However it seems most jobs that require an enhanced CRB check (care and nursing in my expereince) are exempt from this act and so even ‘spent’ convictions are disclosed.
    Secondly, the ‘relevant information’ can be dodgy ground – based on opinion, hearsay, and ambiguous language, rather than actual justice proceedings. This seems open to abuse – in my case useless, judgemental mental health professionals alternately bullying and neglectful (not just my opinion but that of better professionals later!) who were ott in the ‘zero-tolerance policy’ citing being angry as ‘violence’ yet not being willing to give a statement to confirm this. So rumours of ‘violence’ and very personal and judgemental comments on my CRB that I can’t remove despite more recent MH assesments that are more accurate. The lack of evidence needed for this life-changing stuff on a CRB is shocking.
    A particular gripe, which I assume you can’t comment on, is that my last CRB check said I had “been involved with police on a number of occasions between XXXX (date of arrest) and XXXX (date of applying for CRB)”. The latter date was several years after conviction – when I questioned this via appropriate channels, I was told “we were still collecting intelligence”. (Looks like they could do with some!)

    As ever, gripes at the system not yourself, keep up the good work on the blog 🙂

  5. http://www.homeoffice.gov.uk/publications/agencies-public-bodies/CRB/qaf-introduction/rep-app-guidance?view=Binary

    http://www.homeoffice.gov.uk/publications/crime/disclosure-and-barring/leaflet-england-wales?view=Binary

    These links above should help for anyone who is still in doubt about the representations process. It is not a perfect system, but the planned changes including the appointment of an independent monitor should give applicants more control over who can access their personal data. Nacro Resettlement Advice Service will reopen 3rd September we will be happy to advise on more complex issues/concerns after this date.

  6. I don’t know if this is completely relevant, but a close friend of mine overdosed in December 2011 and spent a couple of months in hospital including a brief stint in a psychiatric unit. He says this appeared in an enhanced CRB check shortly after and he believes it cost him the job opportunity as he got declined after it came back. As far as I’m aware only an ambulance was called in that incident, there was no police involved, how would this have happened? Is it a routine practice in some areas for the ambulance service to notify police of such incidents?

    It may be an anecdotal account, but I have also heard of similar things happening to other people. Hospital admissions and sectioning appearing in CRB checks despite the fact there was no police involvement.

    1. I’m not immediately clear how the police would have known if they weren’t involved in the detention / admission. It’s not routine practice for the ambulance service to notify the police of their involvement with an MH admission; can only imagine the police were told because support was requested then not needed or the police were asked for some formal information to help the NHS assess / confirm risks. Hard to be specific, though.

  7. The police love destroying lives. Who the fuck has the right to disclose NON-CRIMINAL information that is CONFIDENTIAL about someone’s mental health to a prospective employer??
    My life is ruined anyway.

    1. I appreciate it is an emotive subject, but generalisations of this kind won’t help. The fact of the matter is, I absolutely HATE doing things that I fear may destroy lives and I worry about it, constantly and to the detriment of my own health.

      The legal framework around this is clear: the police may only disclose non-conviction / non-caution information known to them if they can argue that it is directly relevant to the application being made. The person subject to that disclosure has a right of appeal before the information is made known to the prospective employer if they believe that it is either irrelevant or unfair. In numerous conversations over the years on this, most people can see that there are some, just some, circumstances where disclosure would be appropriate. In most cases, it would not, but given that police intervention in mental health situations usually occurs in a context of risks, it has to be right that those risks are at least considered where applications are being made to work in relevant positions?

  8. This is a disgrace. I was detained under section 136 and now the police have added this to my DBS. I have now been refused entry to my nursing course. This is despite the fact that I successfully sued the police for unlawful detention in relation to this. They conceded the case on a technicality as due process was not followed, however they still stand by the background reasons for detention and it appears on my DBS. What sort of justice is this? No convictions, no cautions but still discriminated against What a load of wankers and what a shit country.

  9. Hi! I wonder if you can help me. I’ve applied to become a paramedic but I was given a Section 136 21 months ago….I’m not sure if this will be on my enhanced DBS check or not….will they see it as relevant to the job I’m applying for and disclose it? Anyone else been refused a similar job because of this? I would appreciate any advice because I’m worried now whilst I’m waiting on my checks…….

    1. It normally won’t be disclosed unless the particular circumstances make the police think it is directly relevant to the role. I’ve noticed since CRB checks became DBS checks, that disclosure of s136 in enhanced checks is going down. So I can’t say, “No”, but it is far less likely and you’ll have a right to appeal should they choose to disclose it. Hope that helps and good luck with your application – it’s great work to do!

      1. Thank you for the information. I appreciate your advice from your experience and knowledge. Fingers crossed it doesn’t stop my application going further :/

    2. Why don’t people question CRB/DBS regarding the Human Rights Act? i say this because if anybody has a conviction ask what has it got do do with the job your applying for”. Also section 8 of the Human Rights Act says you have right to private life” so as this is the case once you sign the application form/contract you waver your right to section 8 right to to private life. CRB/DBS do not tell people this on the application forms, so question there ethics and get a job !

      Ps the Supreme Court made a ruling last year that a conviction does not stop you getting a job, the conviction has got to be relevant to the job role, this ruling still stands as Theresa May did not appeal against the judgement……

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