A mistake of fact: JB v- Elysium Healthcare and Secretary of State for Justice

Posted: 6th February 2025
by Rachael Hart

In the case of JB v- Elysium Healthcare and Secretary of State for Justice, the appeal related to how a tribunal reached a decision based on a mistake of fact. The issue surrounded whether medical treatment was considered to be ‘appropriate’ for a patient and whether it could properly be said to be ‘available’ to him if the hospital in which he was detained had the resources to provide it but was not willing to do so.

‘JB’, who is a male and currently detained under Section 37/41 of the Mental Health Act 1983, had initially appealed his case to the First-Tier Tribunal, who made the decision not to grant a conditional discharge. JB had several criticisms of this tribunal decision where he disputed many of the factual findings and maintained the tribunal was wrong in their decision.

The facts of the case were that immediately following the First-Tier Tribunal hearing, JB made audio recordings which showed his responsible clinician had lied about intending to resume psychological therapy. JB therefore stated the First-Tier Tribunal was misled by the evidence of his then responsible clinician as to the availability of appropriate medical treatment, and that this amounted to a material error of law.

On the basis of the recordings, JB asked for the Upper Tribunal to set aside the First-Tier Tribunal decision. The Upper Tribunal decided the First-Tier Tribunal had been labouring under a mistake of fact amounting to an error of law. The case was remitted back to the First-Tier Tribunal for re-hearing.

JB now awaits the listing of a further First-Tier Tribunal hearing to enable his case to be re-heard.

This case underlines the importance of ensuring that an individual, who has been detained under the MHA 1983, is provided the most appropriate and available treatment for their diagnosed condition. Additionally, when a case is brought before a tribunal, the information that is presented needs to be as up to date and accurate as possible to ensure that the decision is the right one.

Rachael Hart, Senior Associate Solicitor in EMG Solicitors’ Court of Protection Health and Welfare team, added:

“This has been a long process for JB who had initially started the appeal without legal representation. We were pleased to have taken on his case and through his determination and with the amazing work of our counsel Arianna Kelly, we managed to obtain a positive result for JB which has been a brilliant achievement.”