Updated Guidance for the Mental Health Crisis Breathing Space Scheme

Background

The Breathing Space scheme was launched by the Government in May 2021. The standard breathing space scheme provides a period of protections for individuals who seek professional debt advice, pausing enforcement action, and most interest, fees and charges for 60 days.

As problem debt and mental health are often linked, the Government decided that Breathing Space should have a specific Mental Health Crisis Entry route, providing similar protections to individuals who are in problem debt and suffering from a mental health condition of a serious nature. Those entering the scheme via this route must be certified to be receiving mental health crisis treatment, either in a hospital setting or in the community, by an Approved Mental Health Professional (AMHP). This is detailed in breathing space regulation 28(2)(a-d). Those individuals that enter into a Mental Health Crisis Breathing Space are not required to engage with debt advice to receive these protections due to the complex nature of mental health conditions.

Once certified, a regulated debt adviser must then confirm a person’s financial eligibility before granting them entry into the scheme. The duration of a mental health crisis breathing space lasts for as long as the individual’s crisis treatment lasts, plus 30 days. During the mental health crisis breathing space, the individual’s nominated point of contact (NPOC), either an AMHP, care coordinator or mental health nurse, will be required to confirm to the debt adviser at 30-day intervals that the individual is still receiving eligible mental health crisis treatment for the protections to continue.

The Government created specialist guidance to support the healthcare professionals who were carrying out statutory duties under the scheme and created an evidence form for AMHPs to use when certifying mental health crisis treatment.

Summary of Recent High Court Judgments (Kaye v Lees)

The regulations concerning mental health crisis breathing spaces were considered by the High Court in several recent cases, specifically the eligibility criteria for someone entering the scheme and the role of debt advisers, most significantly in Kaye v Lees [2023] EWHC 152.

Eligible mental health crisis treatment

Regarding an individual’s eligibility, the Court indicated that the category of mental health crisis treatment in regulation 28(2)(e), which details crisis treatment being delivered in a community setting, must be read consistently with the four categories which precede it in 28(2)(a) to (d). Regulations 28(2)(a) to (d) provide that an individual is receiving mental health crisis treatment if they have been detained in hospital or removed to a place of safety by a police constable.

Regulation 28(2)(e) should therefore be read as only capturing situations equivalent in severity to those described in (a) to (d), but where the treatment can be provided without the individual being removed or detained under the Mental Health Act 1983 without their consent.

Role of debt advice providers

Regarding the role of debt advice providers, the Court also indicated that, in the context of seeking confirmation from a 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 the confirmation is “cogent”. If the information available gives rise to a reason to doubt whether 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 AMHP, to ensure that their confirmation of the individual’s crisis treatment has been given on a sound basis, before accepting such confirmation.

Similarly, the Court indicated that the debt adviser should consider seeking such clarification, confirmation or further information from the NPOC or AMHP if, when considering whether the eligibility conditions are met before starting a mental health crisis breathing space, the information available (including any supporting evidence provided) gives rise to a reason to doubt whether the individual is receiving mental health crisis treatment.

Implications for AMHPs and NPOCs

The Government has therefore updated its mental health crisis breathing space guidance for healthcare professionals to reflect the Court’s interpretation of the regulations.

Applications and referrals into the scheme should still be made in the same way. In line with the existing process, an AMHP will still assess whether individuals are receiving mental health crisis treatment and therefore eligible for the scheme. Meanwhile, NPOCs will still be required to confirm to debt advisers at 30-day intervals whether the individual is still receiving eligible crisis treatment.

However, the Government advises that AMHPs and NPOCs amend some of their processes as a result of the recent High Court judgment. In summary:

AMHPs

• AMHPs should continue to be satisfied that the statutory definition of mental health crisis treatment in breathing space regulation 28 is met before confirming an individual’s eligibility for the scheme.
• When considering entering individuals who are receiving crisis treatment in the community or in another setting (such as an outpatient clinic) under regulation 28(2)(e)) into a mental health crisis breathing space, AMHPs should be satisfied that the individual is in treatment for a mental health condition of equivalent severity to mental health conditions which, in other circumstances, could justify the individual’s detention in a hospital setting or removal to a place of safety by the police. An assessment under the Mental Health Act 1983 is not required for the AMHP to decide whether the individual’s mental disorder meets the required level of severity.
• Once the AMHP submits the HMT evidence form to the debt adviser they generally have no further role at this point in the process. However, if the debt adviser comes into possession of information which gives rise to a reason to doubt whether an individual is receiving eligible crisis treatment under the breathing space regulations, the AMHP that certified the individual’s crisis treatment (or another AMHP if they are unavailable) may be contacted (even if they are not the nominated point of contact) and asked to confirm details regarding the individual’s continuing eligibility for a mental health crisis breathing space; this could involve the AMHP being asked to provide additional clarification, information, or confirmation. The AMHP should properly engage with the specific issue that has caused the debt adviser to doubt the individual’s eligibility for a mental health crisis breathing space and ensure that the relevant statutory test (set out in regulation 28) is met.
• Some individuals who are currently in a mental health crisis breathing space may no longer be eligible for the scheme’s protections under the High Court’s interpretation of crisis treatment. It is therefore possible that non-AMHP nominated points of contact for individuals currently in a mental health crisis breathing space admitted under regulation 28(2) (e) (i.e.care coordinators and mental health nurses) will contact the AMHP to confirm continuing eligibility for mental health crisis breathing space for these individuals as part of the 30-day interval checks.

NPOCs

• NPOCs should still be satisfied that the individual is continuing to receive eligible mental health crisis treatment when they send confirmation to the debt adviser at the 30-day interval checks.
• Some individuals who are currently in a mental health crisis breathing space, namely individuals admitted to the scheme under regulation 28(2)(e), may no longer be eligible for the scheme’s protections under the High Court’s interpretation of crisis treatment. As part of the 30-day interval checks, the NPOC should go back to the AMHP that certified the individual’s crisis treatment and seek clarification as to whether the individual’s crisis treatment is still valid under the updated interpretation of crisis treatment.

• NPOCs may be contacted by the debt adviser if they come into possession of information which gives rise to a reason to doubt whether an individual is receiving eligible crisis treatment under the breathing space regulations. NPOCs that are not AMHPs (non-AMHP care coordinators and mental health nurses), may need to contact the AMHP that certified the individual’s crisis treatment (or another AMHP if they are unavailable) to confirm details regarding the individual’s continuing eligibility for a mental health crisis breathing space; this could involve the AMHP being asked to provide additional clarification, information, or confirmation.

Healthcare professionals should consult the Government’s updated guidance for further information on these changes in the first instance which can be found here at https://www.gov.uk/government/publications/debt-respite-scheme-breathing-space-guidance-on-mental-health-crisis-breathing-space.