New statutory guidelines, issued by the Home Office, come into effect tomorrow concerning the Disclosure and Barring Service. For those of you who have not (yet) heard of the DBS; it replaced the old Criminal Record Bureau in 2012 and took on certain other responsibilities to maintain lists of professionals who are barred by law from working in particular professions. This is obviously of massive importance where it comes to the employment of people who work with vulnerable groups and this new guidance strikes at the heart of concerns that were raised during last year’s consultation on the operation of the Mental Health Act 1983. The Government review was in connection with police powers under sections 135/6 of the Act but a point repeatedly raised in passing was the disclosure by Chief Constables of such incidents during DBS checks.
This is clearly a very sensitive subject and it has been discussed for some years – you may recall that Alastair CAMPBELL published a BLOG back in 2011 where he reproduced (with permission) a letter from Eileen O’HARA, a mental health campaigner. She highlighted how some of her mental health history had been disclosed to a prospective employer during an enhanced CRB check. Fortunately for her, she was seeking to work for a mental health charity who took an enlightened view that this represented no automatic barrier to her position. But it highlighted a point affecting many others: mental health history is not automatically disclosed by mental health services, indeed it would be regarded as medically confidential. Therefore when, if ever, is it acceptable for a police service to disclose information without the consent of the person that officers were privy to purely because they became involved in a situation in support of mental health services or because they had instigated section 136 of the Act for someone in crisis?
A LITTLE BIT OF HISTORY
For those not familiar with the history: under the CRB regime, Chief Constables were bound by the Police Act 1997 to disclose information that “might be relevant” to the employment of a person seeking a position that requires an enhanced check – typically those involving children, vulnerable group and security issues. And to an extent, anything might be relevant to anything else! If you didn’t read Eileen O’HARA’s letter, it contained the quotation from the police disclosure –
Devon and Cornwall Constabulary are (sic) aware that in 2009, Eileen O’HARA was a patient of the Glenbourne Mental Health Unit in Plymouth; we are not aware whether she has any current mental health issues, or whether she presents a risk to vulnerable people.
You could spend a whole day wondering about the implied meaning here: indeed you’d have to because it doesn’t actually say anything! What are they trying to convey to the prospective employer? Does the final, subordinate clause indicate an assumption that a patient in a mental health unit inherently must represent an risk to vulnerable people?! – that’s certainly not the criteria for detention under the Mental Health Act! Patients can be admitted under section 2 or section 3 merely because they are a risk to themselves; and not necessarily from self-injury either. It could just simply be that a patient is at risk from significant self-neglect – unable to care for themselves, take care of finances, etc. – or unable to protect themselves from the exploitation of others.
But of course, under the law in 2009, the Chief Constable had a duty disclose information that ‘might be relevant’ and this responsibility was debated in the courts including both the Court of Appeal and the Supreme Court. Various opposing judgments were given over the years. Without some kind of guidance, how do you start to weigh the various factors and comply with the requirement of Article 8 ECHR (the right to privacy)? The Supreme Court case gives the binding view and provides the legal backdrop to how interpretation of the Police Act should be approached.
What we still don’t know from disclosures like the above, is anything about the actual nature of the incident. Police involvement with patients who are admitted to hospital could take one of many forms and I can imagine several that would by utterly irrelevant to prospective employers but which involve application of the Mental Health Act or admission to hospital. Greater, more detailed judgement is required because the police often fulfill roles better undertaken by other agencies and not because anything inherently required police officers’ skills, equipment or legal powers.
In any event: all of that is history.
THE NEW GUIDELINES
Chief Constables and PCCs have already received copies of the Home Office’s guidelines. The statutory basis of them is important because it means that any decision taken after after Monday 10th August 2015 must be rationalised against the new framework and a more thorough, thoughtful approach will have to be taken about mental health related information. I fully understand that some commentators will read the guidelines and will have hoped they went further: incidents involving the police or that were legally handled using powers under the Mental Health Act can still be disclosed: the difference introduced by the Protection of Freedoms Act 2012 was that the “might be relevant” criteria was replaced by “reasonably believe it to be relevant” and the law has long upheld the right of Chief Constables to disclose information that did not result in a conviction where it is directly relevant on a balance of probabilities.
These new guidelines cannot introduce a total barrier to disclosure – that remains permitted by the Police Act 1997, but they can require the decision to be taken against consideration of factors considered relevant by the Home Office.
- Detention under the Mental Health Act, which does not constitute a criminal investigation, is unlikely in itself to be sufficient to justify disclosure.
- The behaviour of the person during the incident must be a key consideration for officers when considering checks. This could include assessing whether the person presented a risk of harm to others or whether they were involved in multiple incidents.
- The date of the incident is an important factor. In cases where it took place a long time ago, officers should consider giving the applicant an opportunity to make representations about their current state of health.
- If information is disclosed, the certificate should provide an explanation so the employer or voluntary organisation clearly understands the relevance of the information to the application.
Finally and perhaps most importantly: it remains the case that individuals have a right to appeal to an Independent Monitor regarding information that they believe should not be disclosed and this appeal mechanism can insist that a new certificate be issued, where it is upheld. This is a step in the right direction: whether it is sufficient will probably depend on your view about the relationship between mental health, crime and risk.
MENTAL HEALTH, CRIME AND RISK
As the guidelines rightly point out, detention of someone under s135/6 is not a part of a criminal investigation. However, the origin of this power and its use in practice, is that it allows officers to deal with mental health crisis incidents even where they involve the commission of a minor offence – remember the power was part of consolidating other offences under outrageously outdated nineteenth century laws. The last time I was present at an incident where s136 was invoked, the person concerned had committed a clear offence under modern legislation – they had brought a major motorway to a halt, a serious offence under the Road Traffic Act 1988 (and as my colleagues in motorway policing often tell me, it costs a £1m an hour to the UK economy). That said, the major issue in the incident was not a relatively short period of inconvenience to motorists, but the chance to save someone’s life whilst acutely distressed and such s136 incidents are the exception. In the main, police powers are used to safeguard people at risk, mostly from themselves – as is the case with the Mental Health Act as a whole.
So there it is – a presumption against disclosure of police-related Mental Health Act incidents unless something very specific within the actual incident higlights something that the Chief Constable reasonably “believes to be relevant” because of potential risk in the context of that potential employment. But individuals are no longer at the total whim of a system beyond their control and they have a right of appeal. Not perfect, but certainly better than it was!
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