Cancelling a moratorium

Overview

This case considers what evidence must be produced on an opposed application to cancel an individual’s mental health crisis moratorium.

Background

The applicants claimed to be owed in excess of £2.3 million pounds by Mrs Nihal Mohammed Brake, the first respondent, and her husband in unpaid damages and costs awards as a result of litigation against them. Mrs Brake was entered into a mental health crisis moratorium under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (the “2020 regulations”) in late August / early September 2022.

Mrs Brake’s assessment which led to the moratorium was carried out by a mental health team operated by the third respondent, Dorset Healthcare University NHS Foundation Trust. The applicants applied for a review and cancellation of the moratorium. On 29 September 2022, the debt adviser administering the moratorium (the second respondent, Rethink Mental Illness t/a Mental Health and Money Advice (England)) concluded on a review that the criteria for cancellation were not met.

On 14 October 2022, the applicants applied to the Court for an order to cancel the mental health crisis moratorium. At issue was what directions ought to be given to lead to the substantive application.

The Law

The Court had regard to various provisions of the 2020 regulations, in particular Part 3, which deals with the mental health crisis moratorium. Under Part 3, Mrs Brake can only be in a mental health crisis moratorium ("MHCM") if she is receiving "mental health crisis treatment": reg 28(1). This is defined in reg 28(2) in 5 sub-paragraphs. The first four refer to a person in hospital or a "place of safety", and do not apply to her. The only sub-paragraph which could apply to her is (e), which is that she "is receiving crisis, emergency or acute care or treatment … in the community from a specialist mental health service in relation to a mental disorder of a serious nature".

The application for her entry into the MHCM must have included "evidence from an approved mental health professional that the debtor is receiving mental health crisis treatment", and that evidence must have included both a declaration by the health professional that she was receiving mental health crisis treatment: reg 29(2)(b), (3)(d)(e).

The debt advice provider was obliged to initiate the MHCM if he or she considered that, in light of the information provided, a MHCM would be appropriate, and an approved mental health professional had provided the necessary evidence that Mrs Brake was receiving mental health crisis treatment: reg 30(2)(4).

Under Part 1, the applicants were entitled to, and did, request a review by the debt advice provider to determine whether the moratorium should be cancelled on the basis either of unfair prejudice to the applicants, or of material irregularity in relation to her eligibility to make the application she made: reg 17(1)(2). Having carried out that review, the debt advice provider did not cancel the moratorium.

Since the debt advice provider did not cancel the moratorium, the applicants were entitled to apply to the court for an order cancelling it, again on the basis either of unfair prejudice to the applicants (reg 17(1)(a)), or of material irregularity in relation to her eligibility to make the application she made (reg 17(1)(b)): reg 19(1). The applicants pursued both grounds. If the court is satisfied as to either of the grounds, it may cancel the moratorium either in relation to the applicants' debts, or to any others: reg 19(3).

The Parties’ Positions

On the application to cancel the moratorium, the applicants sought, among other things, directions that the respondents disclose a range of medical and non-medical documents and information. The second and third respondents (Rethink Mental Illness t/a Mental Health and Money Advice (England) and Dorset Healthcare University NHS Foundation Trust) stated that they would not make voluntary disclosure, and that a court order would be needed.

Mrs Brake also objected to a medical examination by an expert appointed on behalf of the applicants, saying that the court has no jurisdiction to order such an examination to take place. Instead, Mrs Brake agreed to produce "medical evidence to assist the court in carrying out a balancing exercise, if necessary, in respect of her mental and physical health and the impact of the latter on the former." Accordingly, she asked for direction from the Court as to what that evidence should be.

The Court’s Decision

One of the issues was the weight to be given to the opinion of the medical professional in determining whether Mrs Brake was receiving treatment in relation to a mental disorder of a serious nature pursuant to regulation 28(2)(e). Mrs Brake argued that the Court could not go behind the medical health professional's opinion. The Court did not decide the point at this stage, but stated that this interpretation did not appear to reflect the words of the regulation. Regulation 28(2)(e) does not say "in relation to what an approved medical health professional considers to be a mental disorder of a serious nature", or even what he or she "reasonably considers" to be such a disorder. Instead it simply says "in relation to a mental disorder of a serious nature".

In other words, on the face of it, the test is not what the professional thought at the time, but what the court now decides (on the evidence) what actually was the case then. Of course, the available evidence will include the opinion of the professional, formed in the particular circumstances of the case (including examination of the debtor and any tests conducted). But it appears from the regulation that that opinion will not be conclusive, and that the test appears to be an objective one and not a subjective one.

Mrs Brake also submitted that the applicants' submissions in support of their application did not take into account her rights under Article 8 of the European Convention on Human Rights, which deals with the right to respect for private and family life, imported into UK domestic law by virtue of the Human Rights Act 1998.  The Court reviewed the case law on this provision, and concluded that the right itself is not a right to private and family life, but a right to respect for private and family life, which is far from absolute, being subject to the matters provided for in paragraph 2 of Article 8.

Subject to paragraph 2 of Article 8, an order of the court for the disclosure of first respondent's medical records and other personal medical information to the applicants would constitute an interference with the Article 8 right. In the Court’s judgment, an order made by the Court for such disclosure under CPR Part 31 or under the inherent jurisdiction of the court would be "in accordance with the law" because the basis for such an order would be the application of existing and known rules, which are foreseeable in their effect. It would also be "necessary in a democratic society". This is, first, because it is proportionate to the public interest promoted by the legal procedures for the recovery of debts in general, and to the further public interest promoted by regulation 19(1) of the 2020 regulations, in restricting a debt moratorium provided for under those regulations to those cases where the legislated criteria are properly satisfied. Second, it satisfies that test because it is subject to appropriate safeguards, both in restricting the scope of the disclosure to that which is properly relevant to the issue, and in imposing obligations of confidentiality (with appropriately serious sanction for breach) on those who receive the disclosed information. This means that no more is disclosed than is necessary, and that it can only be used for the limited purpose for which it was ordered to be disclosed.

The issues on the application are, first, whether at the material time Mrs Brake was suffering from a mental disorder of a serious nature, and, second, whether she was receiving care or treatment which was "crisis, emergency or acute" care or treatment. That means focussing on what symptoms Mrs Brake presented with, the referral to an appropriate mental health professional, her assessment by that professional, the diagnosis by the professional, the seriousness of the disorder, the treatment prescribed or recommended, and the treatment actually received.

In the Court’s judgment, a disclosure order was an appropriate and proportionate means to lead to the just determination of the dispute between the parties. Accordingly, the Court ruled that disclosure must be given to the applicants and Mrs Brake by the second and third respondents of all documents (including documents in paper or in electronic form) in their respective control (whether created by them or by third parties) which are likely either (i) to support, or (ii) adversely to affect, the present application in relation to any of the following issues:

1. the symptoms of mental disorder complained of by Mrs Brake;

2. the referral of Mrs Brake to the mental health team of the third respondent;

3. the assessment(s) of Mrs Brake;

4. the diagnosis or diagnoses of mental disorder of Mrs Brake;

5. the seriousness of such disorder;

6. the treatment(s) recommended or prescribed by medical professionals in respect of such disorder, including the plans for such treatment(s);

7. the treatment(s) actually received by Mrs Brake in respect of such disorder.

In determining whether to exercise its discretion to order that Mrs Brake be examined by an expert appointed by the applicants, the Court had regard to the fact that the examination required will not be an intrusive or intimate one, and will not involve the taking of blood or tissue from Mrs Brake. There will be no invasion of her bodily integrity. It will not involve any pain or risk to her. Nor will it require her to be away from home for any length of time, and certainly not overnight. In addition, the information obtained from the examination will be confidential and dealt in accordance with the implied undertaking rule. The Court’s overall assessment was that the interests of justice required Mrs Brake to submit to an examination by an expert appointed by the applicants.

Conclusion

As a result, the Court ordered that the respondents disclose the categories of documents listed above, and that Mrs Brake be examined by the applicants’ expert.

Judge: HHJ Paul Matthews

Counsel: William Day of 3 Verulam Buildings (instructed by Stewarts Law LLP) for the Applicants