JB v Elysium Healthcare & Anor

Medical treatment is not “available” for the purposes of continued detention under the Mental Health Act 1983 merely because a hospital has the resources to provide it. The detaining authority must be willing to provide the treatment.

A tribunal commits an error of law where it decides on a material and uncontentious mistake of fact for which the affected party was not responsible. Where the tribunal treated unavailable psychological therapy as key and entirely appropriate treatment, the mistake was material. The decision must be set aside and the statutory criteria reconsidered afresh by a new tribunal.

JB appealed against a First-tier Tribunal decision of 31 August 2024 upholding his detention for treatment. The First-tier Tribunal found that appropriate medical treatment was available at The Spinney. It placed particular weight on proposed psychological work, which it described as key and entirely appropriate.

After the hearing, JB produced recordings of conversations with his responsible clinician. His subsequent responsible clinician accepted that there had been no intention to restart psychological sessions when the First-tier Tribunal heard the case, although the hospital had resources capable of providing them.

The Upper Tribunal considered whether the First-tier Tribunal had acted on a material mistake of fact and whether treatment could be available when the detaining authority was unwilling to provide it.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for an error of law and the case was remitted to a freshly constituted tribunal for a full rehearing.

2. Applying E v SSHD [2004] EWCA Civ 49, a mistake of fact amounts to an error of law where it concerns an existing and uncontentious fact, is not attributable to the party relying on it, and played a material part in the tribunal’s reasoning. Those requirements were met. The responsible clinician’s evidence had wrongly conveyed that psychological therapy would be offered, when there was no intention to restart it.

3. Following Rooman v Belgium [2019] ECHR 105 and SF v Avon and Wiltshire [2023] UKUT 205 (AAC), appropriate medical treatment cannot be treated as available merely because the hospital has the resources to provide it. Where the detaining authority is unwilling to provide the treatment, it is not truly available to the patient.

4. The error was material. Although other treatment was available, the First-tier Tribunal had placed particular importance on psychological work and had recorded it as key and entirely appropriate. It was not clear that the tribunal would have reached the same conclusion without its mistaken belief.

5. All statutory detention criteria must now be assessed afresh. The new tribunal is not bound by the earlier factual findings. Findings must rest on evidence, rather than assertion; the judge endorsed the approaches in AM v Partnerships in Care Ltd [2015] UKUT 659 (AAC) and R (AN) v MHRT [2005] EWHC 587 (Admin).

• Upper Tribunal (Administrative Appeals Chamber): Allowed JB’s appeal, set aside the First-tier Tribunal decision under the Tribunals, Courts and Enforcement Act 2007, and remitted the case for a fresh hearing.

• First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health): On 31 August 2024, upheld JB’s continued detention for treatment.