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JB v Elysium Healthcare [2025] UKUT 9 (AAC)

Mistake of fact - availability of treatment

Audio recordings made by the patient immediately after the tribunal showed that the RC had lied about intending to resume psychological therapy. On the basis of those recordings, the UT set aside its original refusal to grant permission to appeal, and now decided that the tribunal had been labouring under a mistake of fact amounting to an error of law. It was not clear what the decision would otherwise have been (the tribunal referred to other treatment but attached particular importance to psychology) so the error was not immaterial. The case was remitted for re-hearing by a new tribunal. The UT noted, from previous authority, that: (1) appropriate medical treatment cannot be said to be "available" to a patient if the detaining authority is unwilling to provide it; (2) to establish a mistake of fact amounting to an error of law: (a) the mistake must be on an existing fact (including mistake as to the availability of evidence on a particular matter); (b) the fact must be uncontentious; (c) the party asserting the error of law must not be responsible for the mistake; and (d) the mistake must have played a material part in the tribunal’s reasoning.