Guidance

Mental Health Crisis Breathing Space Guidance Changes Following 2023 High Court Judgments

Updated 9 June 2023

Kaye v Lees [2023] EWHC 152 (KB)

Implications for Debt Advice Providers

The regulations concerning mental health crisis breathing spaces were considered by the High Court in several recent cases. Most significantly, in Kaye v Lees [2023] EWHC 152 (KB), the Court indicated that, in the context of seeking confirmation from a nominated point of contact (NPOC) that a debtor is still receiving mental health crisis treatment, a debt advice provider should be satisfied that any evidence that has been supplied to support that confirmation is “cogent”. Accordingly, if the information available gives rise to a reason to doubt that the debtor is still receiving such treatment, the debt advice provider should consider whether it would be appropriate to seek clarification, further information or confirmation from the NPOC or Approved Mental Health Professional (AMHP), to ensure that their confirmation has been given on a sound basis, before accepting such confirmation.

Similarly, in considering whether the eligibility conditions are met before starting a mental health crisis breathing space, if the information available (including any supporting evidence provided, which could include the most recent assessment and care plan documentation and/ or associated records) gives rise to a reason to doubt that the debtor is receiving mental health crisis treatment, the debt advice provider should consider whether it would be appropriate to seek clarification, further information or confirmation from the AMHP, to ensure that their evidence under regulation 29(2)(b) (in particular the AMHP’s declaration under regulation 29(3)(d)) has been given on a sound basis, before accepting such evidence.

The Court noted that debt advice providers are not required to “assess the debtor’s health for himself”[/themselves] or to “second-guess medical evidence”. Therefore, in assessing a debtor’s eligibility for a mental health crisis moratorium, it remains the case that a debt advice provider can rely on the AMHP’s certification of the debtor’s mental health crisis treatment, provided in the evidence form.

However, in light of the Court’s judgment, debt advisers should consider taking additional steps to confirm a debtor’s eligibility in certain situations. For example, if the debt adviser has a legitimate and material reason to suspect that the debtor may not be receiving crisis treatment which meets the statutory definition (or that the debtor is no longer receiving such treatment), the debt adviser should consider contacting either the NPOC or the AMHP who certified the debtor’s eligibility for the scheme, to request further confirmation that the debtor is receiving crisis treatment as defined in regulation 28(2). In doing so, the debt adviser should check that any evidence provided to support the AMHP’s declaration (or the NPOC’s confirmation) is cogent (i.e. that the relevant declaration or confirmation has been given on a sound basis) .

Definition of Mental Health Crisis Treatment

The Court also indicated that the category of mental health crisis treatment in regulation 28(2)(e) has to be read consistently with the four categories which precede it (i.e. sub-paragraphs (a) to (d)). In the Court’s judgment, “any other crisis, emergency or acute care or treatment in hospital or in the community from a specialist mental health service in relation to a mental disorder of a serious nature” is a “sweeping up provision” intended to catch situations which have “the same quality as those identified in sub-paragraphs (a) to (d) so far as the severity of the mental disorder is concerned but which do not fall into one of those earlier categories”.

Accordingly, regulation 28(2)(e) should be read as only capturing situations equivalent to those described in (a) to (d), but where the treatment can be provided without the debtor being removed or detained without their consent.

Therefore, in order to certify that a debtor is receiving mental health crisis treatment in a community or hospital setting under regulation 28(2)(e), an AMHP should be satisfied that the debtor is in treatment for a mental health disorder of a comparable severity to disorders requiring a patient’s detention in a hospital setting and caught by sub-paragraphs (a) to (d).