Mental Health Crisis Breathing Space Guidance Changes Following 2023 High Court Judgments
Updated 9 June 2023
漏 Crown copyright 2023
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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 鈥渃ogent鈥�. 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鈥檚 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 鈥渁ssess the debtor鈥檚 health for himself鈥漑/themselves] or to 鈥渟econd-guess medical evidence鈥�. Therefore, in assessing a debtor鈥檚 eligibility for a mental health crisis moratorium, it remains the case that a debt advice provider can rely on the AMHP鈥檚 certification of the debtor鈥檚 mental health crisis treatment, provided in the evidence form.
However, in light of the Court鈥檚 judgment, debt advisers should consider taking additional steps to confirm a debtor鈥檚 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鈥檚 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鈥檚 declaration (or the NPOC鈥檚 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鈥檚 judgment, 鈥渁ny 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鈥� is a 鈥渟weeping up provision鈥� intended to catch situations which have 鈥渢he 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鈥�.
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鈥檚 detention in a hospital setting and caught by sub-paragraphs (a) to (d).