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Unjust to release mental health act info


August 29, 2014
By Dorothy Cotton

One of the challenges of writing of a monthly column is resisting the inclination to repeat oneself ad nauseam. I am quite capable of going off on a harangue with alarming frequency about issues I feel very strongly about.

So far I have been able to resist the urge, largely informed by my belief that this would lead to the end of my journalistic career. Therefore, before writing today’s column, I checked my index and reassured myself that my last treatise on this topic was in January 2010. I figure half of you readers weren’t paying attention back then and the other half probably have early dementia and won’t remember what I said four years ago, so I am safe.

The issue? Inclusion of mental health act apprehension information on that dubious and ill-defined commodity known as the “police record check.” I have ranted about this issue for almost 10 years and no one has ever paid the slightest bit of attention – to the extent that I actually stopped ranting as I noted people were starting to roll their eyes when they saw me coming. Somehow the topic has recently gotten a bit of traction (no thanks to me, I will add).

I think we all know the issues. Basically, when a person is apprehended under a mental health act (and that is APPREHENDED, not arrested!!!), there is a nasty possibility that this information will come back to haunt them later. It can find its way to US Homeland Security and prevent nice old ladies from taking cruises. Potential employers may take a pass after seeing it and eager university students can be prevented from finishing their degrees in things like nursing and social work because of it. It can even prevent volunteers from reading stories to children at the local library. The justifications for this have varied over the years:

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• Public safety concerns, including my absolute favourite story, told to me by a police records person. “What if a boy scout leader previously made a suicide attempt and we didn’t report it and he took a bunch of boys on a camping trip in Northern Alberta and he committed suicide and all the boys were left unattended and froze to death?”

• We do not release this information to employers, just to the person so they have control over it. (Uh huh. Like the employer is going to say “it’s fine with me if you don’t want to share your police record check info – we’ll hire you anyhow.”)

• We could get sued if we don’t release the information and they go nuts in the workplace and kill everyone. (You could get sued if someone falls down the stairs in your headquarters – but I am guessing you all have stairs anyhow.)

• If a person has been apprehended under the mental health act then they are dangerous. That’s what the Mental Health Act says. (Ah, would that life were so simple).

Personally, I am fairly convinced that no one really believes any of these rationalizations. I think police services release this information because they kind of gradually drifted into it without a lot of forethought and found it was hard to back out – so rationalize it instead. I have yet to find an agency that actively made a decision 10 or 20 years ago to deliberately include this information and developed policy accordingly. <1>

Oddly enough, for reasons not clear to me, this issue suddenly got traction about six months ago. Ontario Privacy Commissioner Ann Cavoukian filed a notice of application for judicial review in June, the first in the commission’s 27-year history, to modify the way Toronto Police discloses mental health records and logs them into CPIC. Similarly, British Columbia’s information and privacy commissioner said there should be greater control over what is divulged in police information checks.

Elizabeth Denham looked at the increasing use of employment-related record checks that can disclose sensitive personal information, including mental health illnesses and suicide attempts – and gave the practice a thumbs down. The Civil Liberties Union and John Howard Society have a few things to say on the subject (http://ontario.cmha.ca/news/new-reports-on-police-record-checks-unveiled/), as does well known and very thoughtful lawyer Richard Steineke (www.sml-law.com/wp-content/uploads/2013/06/Greyar186.pdf).

It will be interesting to see where this issue goes. There are hints of good news. The OACP recently updated and revised its LEARN protocol (http://www.oacp.on.ca/news-events/resource-documents/learn-guidelines-police-reference-checks) and has done a pretty decent job with a very complex topic. <2> It has largely restricted reporting of MHA information – bravo! Now if police services would just USE this protocol…

Perhaps some of the police agencies who are less discriminating with their reporting should have a chat with some of the services that have never reported this sort of information. Yup, there are many police agencies who told me (when their colleagues were not looking) that they have never reported this sort of information and there has never been a problem.

They could also talk to their colleagues in Saskatchewan, where policy forbids such releases, and see if the world has fallen apart. (Saskatchewan has had flooding in the last few years but I am pretty sure it’s not related to anyone’s mental health history.)

Perhaps all of us should stop and think about the assumptions that underlie this reporting. Mental illness=danger? I don’t want “those people” working near me or my kids? Not my problem? We just release the info – it’s up to others how it gets used? Are police responsible for everyone else’s hiring decisions?

Really?

<1> While this column focuses on releasing mental health information, I will readily acknowledge that the problems with the nebulous “police record check” extend far beyond this issue alone.

<2> Actually, I am certain there is probably some person/police organization out there who did carefully consider the options and make this decision in advance of an issue arising… but I have yet to find them.