The High Court made directions to submit medical evidence for a mental health crisis moratorium following a creditor application to cancel.
Summary
This case covers the nature of disclosure likely to be required to assist the court in determining whether there has been a 'material irregularity' in the debtor's application for a mental health crisis moratorium.
Mental health crisis moratoriums are provided under The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium)(England and Wales) Regulations 2020.
The court held that disclosure was necessary and made directions on an application to cancel Mrs Brake's moratorium directing that:
Mrs Brake must consent to a medical assessment by an expert appointed by the Guy parties
Rethink and Dorset Healthcare Trust must disclose all documents and findings relating to Mrs Brake's symptoms, assessment, and treatment
Background
This judgment is the most recent in long and complicated litigation between these parties.
In October 2022 the Guy parties applied to cancel Mrs Brake's mental health crisis moratorium that started in August 2022. Their application was based on unfair prejudice and material irregularity concerning Mrs Brake's eligibility.
The Guy parties requested directions to allow the application to cancel to proceed to a substantive hearing. In particular, they requested disclosure under CPR 31.17. The court considered its powers to order disclosure under CPR practice direction 57AD, its own inherent jurisdiction, and the impact on Mrs Brake's right to respect for private and family life under Article 8 of the European Convention on Human Rights.
The court also considered the Guy parties' request for a medical examination, and whether Mrs Brake's nephrology (kidney disease) evidence could be used in support of her eligibility.
The court's decision
The application to cancel the moratorium relates to whether there was material irregularity in the relevant eligibility criteria, specifically whether Mrs Brake was receiving 'crisis, emergency or acute' treatment in relation to a 'mental disorder of a serious nature'.
The court considered the recent decision in Kaye v Lees and the updated guidance to the debt respite scheme. It held the question is not what the approved mental health professional decides, but an objective question of fact for the court. This objective test justified disclosure of documents that support or adversely affect the application to cancel Mrs Brake's moratorium.
The court held that disclosure would be appropriate and proportionate to enable it to answer the question of whether Mrs Brake was suffering from a 'serious mental disorder' required under regulation 28(2)(e).
The court ordered disclosure in relation to:
Mrs Brake's referral to the mental health team and the symptoms she complained of
the assessment and diagnosis of Mrs Brake's mental disorder
the seriousness of Mrs Brake's disorder
the treatment recommended or prescribed by medical professionals
the treatment actually received
Jurisdiction
The court held that CPR 31 (Disclosure and inspection of documents) applied and that an order made would not breach Mrs Brake's Article 8 rights. Disclosure should be for no more than necessary and can only be used for the purpose for which it was ordered.
This decision considered the directions required to allow the Guy parties' application to cancel the mental health crisis moratorium to proceed to a substantive hearing. In doing so, the court considered its jurisdiction to make an order for disclosure.
Medical examination
The court concluded that it was in the interests of justice that Mrs Brake submit to a medical assessment. The assessment would be confidential as the information can only be used for the purpose of these proceedings.
Nephrology evidence
The court held that an expert nephrologist would not assist it to reach its decision. Mrs Brake's renal failure had not been questioned. The cause of a debtor's mental health crisis is not an issue for the court to consider.
Comments
This is the first time a court has assessed what information needs to be disclosed for it to determine a debtor's eligibility for a mental health crisis moratorium and decide whether to grant an application to cancel it.
This case adds to the growing body of judicial guidance concerning creditor challenges to mental health crisis moratoriums.
Debtors and debt advice providers who apply for a mental health crisis moratorium need to be aware that in the event of a creditor challenge on the grounds of eligibility, they could be required to provide relevant documentation. The debtor could also be required to submit to a medical examination.
A court might distinguish future applications based on their facts, but it seems reasonable to acknowledge that courts could follow this decision as the test to determine debtor eligibility.
Find out more about breathing space and mental health crisis moratoriums on Shelter Legal.
December 2023 update
In July 2023, one month after the case was heard, Mrs Brake's moratorium was cancelled because she was no longer receiving mental health crisis treatment.
The High Court vacated the hearing listed for the Guy parties' application to cancel Mrs Brake's moratorium, which was due to take place in September 2023.
The Guy parties asked the High Court to decide whether Mrs Brake had been eligible for the mental health crisis moratorium in the first place. They requested the court order costs against Mrs Brake and Rethink.
The court's decision
There was no longer a need to consider whether Mrs Brake had been eligible for a mental health crisis moratorium.
The general rule is that the costs of the successful party are paid by the unsuccessful party. The court can use discretion to make a different costs order, having regard to factors such as the conduct of the parties. The court can decline to make any order about costs.
As there was no hearing or judgment in this case, the court was not able to state who the successful party was. It was not in the interests of justice to determine who the successful party might have been or to examine the case in more detail.
The High Court declined to make an order for costs against either party.