The Home Office has issued new guidance to police on the factors that must be considered before a person’s history of mental health crises is disclosed to employers in Disclosure and Barring Service (DBS) checks.
‘Statutory Disclosure Guidance’ is revised guidance for chief officers of police to help them decide what police information to disclose during DBS checks. The revisions to disclosure around mental health came after concerns were raised in a 2014 joint Home Office/Department of Health review of the operation of sections 135 and 136 of the Mental Health Act 1983, which noted that chief officers were sometimes disclosing information relating to mental health when it was not relevant or proportionate.
DBS – formerly the Criminal Records Bureau (CRB) – is a check of a person’s criminal record that a prospective employer uses to decide whether someone is suitable to work with children or vulnerable adults.
The revised guidance says that if someone has been detained under sections 135(1) or 136 of the Mental Health Act that is unlikely, in itself, to be sufficient to justify disclosure.
However, additional factors can make a mental illness relevant for disclosure. For instance, a key consideration is the person’s behaviour during the incident – such as if police records show the person presented a particular risk of harm to others, which may include threats or physical violence – then the chief officer might consider the information relevant to disclose to potential employers.
How long ago the incident took place is another important factor. If the chief officer reasonably believes the information is relevant to the application, they should consider giving the applicant the opportunity to make representations about their current state of health before making a final decision on disclosure.
But if the chief officer decides to disclose information relating to an episode of mental ill health, the certificate should provide sufficient explanation to ensure the prospective employer or voluntary organisation will clearly understand the relevance of the information to the application.
The revised guidance has been welcomed by Paul Farmer, chief executive of Mind, although he would have liked to see it go further. “The nature of the current process means that people who are perfectly able to do a job may be unnecessarily excluded because of a lack of clarity about what should and shouldn’t be disclosed,” he said. “There is no reason why having a mental health problem or having been previously detained under the Mental Health Act should necessarily be a red flag when it comes to DBS checks. This guidance is an important next step in providing greater clarity, but there is still room to go further.
“For example, people should automatically be allowed to make representations about the current state of their mental health if concerns are raised. At the moment it is left to the discretion of the chief police officer to give someone that opportunity. In a society where stigma about mental ill health is still rife, we need all the checks and balances possible to negate any fears and preconceived ideas about the one in four of us who experience mental health problems every year.”