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The decision in JB v Elysium Healthcare & Secretary of State for Justice [2025] UKUT 9 (AAC) highlights the serious consequences that can follow when inaccurate and misleading evidence is presented in Mental Health Tribunal proceedings. The case raises important considerations for psychiatrists, legal representatives, and Tribunal members alike—particularly regarding the interpretation of “appropriate treatment” and the threshold for determining that such treatment is available.
Whether or not you agree our Fat Disclaimer applies
JB detained under the MHA 1983, challenged the First-tier Tribunal’s (FTT) decision to uphold his detention. The FTT had accepted evidence from his responsible clinician (the RC) that psychological therapy would be provided. Following the hearing, JB (the patient), appealing that decision, submitted audio recordings that contradicted this. The recordings revealed that there was no intention to offer such therapy. JB’s new clinician later confirmed that the earlier evidence provided by the previous RC had been misleading.
JB had to fight tooth and nail for justice! Read on – it’s a mind-boggling story!
Permission to appeal was initially refused by both the FTT and the Upper Tier Tribunal (UTT). However, the matter was later reopened by the UTT under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, on the basis of new evidence. The UTT ultimately concluded that the FTT had relied on a mistake of fact, which materially affected its decision. This constituted an error of law. Both the FTT and original UTT decisions were set aside and the case was remitted to a newly constituted FTT for reconsideration.
This case illustrates how inaccurate or incomplete clinical evidence can result in unlawful detention. It also demonstrates the legal system’s ability to address such errors, even in the absence of professional misconduct proceedings. The broader implications for ethical practice and professional accountability remain of direct relevance to all clinicians engaged in legal processes.
Misleading a Tribunal or Court can lead to serious professional and legal consequences.
In legal circles we talk a lot about “availability of appropriate treatment” under the Mental Health Act 1983 [England & Wales] (Amended 2007). But let’s stop for a second and actually unpack what “available” is supposed to mean. Because in JB v Elysium Healthcare (2025), a Tribunal – considered to be a court of law – was served a legal fiction dressed up as therapeutic fact. [Just get the gist below]
Think of it this way: Imagine you walk into a restaurant get seated and look at the menu. You then say to the lovely and attentive waitress, “I’ll have the Kung Po Prawns, please.” The waitress nods, disappears into the kitchen, and then returns with, “Ah, so sorry we usually have the Kung Po Prawn, just not tonight. Maybe next week—when the chef’s back. Or the prawns arrive. Or someone finds the wok.”
Now replace the restaurant with a secure hospital. Replace the prawns with psychological therapy. And replace the customer with a detained patient—whose liberty turns on whether that therapy is actually offered, not hypothetically cookable.
In clinical evidence before the Tribunal, it was submitted that the ‘Kung Po Prawns’ were ‘available’. The Tribunal relied on that menu promise to justify JB’s continued detention. But what turned up? Nothing. Not even the plate. JB’s Responsible Clinician misled the Tribunal! [As stated in the UTT judgment – ‘misled’ is not my word.]
Let’s be clear: availability under the MHA means treatment is ready to serve—not out of stock, “under review,” or dependent on invisible staffing rotas. It’s the medical equivalent of saying, “Roll up your sleeve—we can give you the jab now.” Not, “Well… maybe next month, if we get the stuff in.”
Why does this matter? Because for patients like JB, every day of delay isn’t a culinary inconvenience—it’s a deprivation of liberty under force of law.
And no one should be force-fed detention on the basis of an empty dish!
Legal Framework and Clinical Interface
The Mental Health Act 1983 (MHA) permits the detention of individuals for treatment of mental disorder, provided that certain statutory criteria are met. One of these conditions, found at section 3(2)(d), requires that appropriate medical treatment is available for the patient. The meaning of “available” has developed through case law to indicate treatment that is not merely theoretically possible, but which is intended to be delivered in practice.
Tribunals tasked with reviewing detention must consider whether the proposed treatment is real, effective, and sufficiently tailored to the patient’s needs. This includes evaluating whether the treatment is offered as part of a current care plan and whether it is likely to take place within the foreseeable future.
Psychiatrists providing evidence before a Tribunal often serve in a hybrid role, combining the duties of a professional and expert witness roles. Their account of what treatment is available, whether current or anticipated, informs the Tribunal’s ability to lawfully determine whether continued detention is justified.
The Evidence and Submissions Presented to the FTT
At the FTT hearing, JB’s responsible clinician, Dr Al Noufoury, gave evidence indicating that psychological therapy would be provided as part of JB’s ongoing treatment at The Spinney. This therapy was described as a necessary component of JB’s care, specifically targeting his limited insight and difficulties with engagement—factors considered central to his risk profile and rehabilitation.
The FTT accepted this evidence without challenge. The UTT stated in judgment:
“[…]However, while the Tribunal made reference to other treatment being available on the ward, it clearly attached particular importance to the psychological work that it mistakenly believed to have been available. Indeed, the Tribunal described the psychological work to be “key and entirely appropriate”. Further, in its summary of the parties’ cases it noted that the Specialist Community Forensic Team had recommended the restarting of psychological treatment as “absolutely necessary inpatient treatment […]”
para 27 of JB v Elysium Healthcare & Secretary of State for Justice [2025] UKUT 9 (AAC)
In essence, the therapeutic provision – as submitted by JB’s first RC – was treated by the FTT as one of the primary justifications for continuing detention under the Mental Health Act 1983. The treatment’s availability was therefore instrumental to the FTT’s conclusion that the statutory criteria for continued detention were met.
14. Ms Kelly of counsel, for JB, maintained that appropriate medical treatment was not available to JB and the Tribunal’s finding that it was amounted to a mistake of fact amounting to an error of law, necessitating that the FtT Decision be set aside and remitted to be reheard. Ms Kelly also invited me to make findings on the approach taken by the Tribunal in relation to fact-finding and whether the Tribunal’s approach was lawful.
para 14 of B v Elysium Healthcare & Secretary of State for Justice [2025] UKUT 9 (AAC)
Importantly, there was no suggestion during the hearing that psychological therapy had been discontinued or that there was any uncertainty regarding its resumption. The FTT made no inquiries into how soon the therapy would begin, or whether it was currently being delivered. It proceeded on the understanding—derived from the RC’s evidence—that therapy would, in fact, be provided.
This evidence, and the FTT’s reliance on it, formed the foundation for the later appeal. It was only after the hearing concluded that material came to light calling the accuracy of the clinical account into question.
Post-Hearing Evidence and the Reconsideration Process
After the FTT hearing had concluded, JB submitted audio recordings of conversations with clinical staff that he had made on the same day as the hearing. These recordings were not available at the time of the FTT’s deliberations. In the recordings, JB questioned members of his clinical team about the resumption of psychological therapy. Their responses indicated, without ambiguity, that there was no plan to recommence such therapy.
This new information directly contradicted the evidence provided to the FTT by Dr Al Noufoury, which had stated that psychological treatment would be offered. JB subsequently obtained a written statement from his new responsible clinician, Dr Kasmi, who confirmed that the Tribunal had been misled. According to Dr Kasmi, there was no clinical intention to restart therapy, and JB’s presentation at that time did not support resumption of such treatment.
JB applied for permission to appeal the FTT’s decision. His application was initially refused by both the FTT and the Upper Tribunal (UTT). However, under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the UTT has discretion to review a previous refusal of permission where a procedural irregularity or new evidence comes to light. The UTT then agreed to hear his appeal.
In this case, the audio recordings were found to constitute material new evidence, going directly to a central issue in the case: whether psychological treatment was, in fact, available. The UTT accepted that the FTT had been misled when considering JB’s earlier application for permission to appeal. It therefore set aside its own prior refusal and granted permission for the appeal to proceed.
This procedural development marked a turning point. The case, having now entered the jurisdiction of the UTT, was set to be heard substantively. The central legal question became whether the FTT’s decision—based on incorrect factual information—was so affected by that mistake that it amounted to an error of law.
The UTT’s Legal Reasoning and Findings
In its substantive judgment, the Upper Tribunal (UTT) considered whether the First-tier Tribunal (FTT) had made an error of law by relying on inaccurate information regarding the availability of psychological treatment. The UTT approached this question using the established framework from E v Secretary of State for the Home Department [2004] EWCA Civ 49, which sets out four cumulative criteria under which a mistake of fact may constitute an error of law:
Well, this is the nature of law – it has a language that is often different to what ordinary people speak.
- There was a mistake as to an existing and established fact.
- The fact was uncontentious and objectively verifiable.
- The appellant (JB) was not responsible for the mistake.
- The mistake played a material, though not necessarily decisive, part in the tribunal’s reasoning.
The UTT found that all four limbs of this test were met.
- The FTT had proceeded on the basis that psychological treatment would be provided, as set out in paragraph 34 of its decision. This was later shown to be incorrect.
- There was no dispute in the new evidence that therapy was not going to be resumed—this was confirmed both in JB’s audio recordings and by Dr Kasmi.
- JB had not caused or contributed to the error; the incorrect information came from clinical evidence presented by his responsible clinician.
- The mistake was plainly material. The UTT noted that the FTT had referred to the proposed therapy as “key and entirely appropriate”, making it central to the justification for continued detention.
At paragraphs 27 to 29 of the UTT judgment, the judge concluded that the FTT’s error was not incidental or harmless. It struck at the heart of the statutory criteria under sections 3 and 37 of the Mental Health Act. Specifically, if appropriate treatment was not available, the legal basis for continued detention did not exist. The FTT had therefore acted under a mistake of law, that undermined the lawfulness of its decision.
Accordingly, the UTT found that the FTT had made a material error of law. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the UTT set aside the FTT’s decision. Under section 12(2)(b)(i), it remitted the matter to be heard by a freshly constituted Tribunal.
Consequences of the FTT’s Error
The discovery that the First-tier Tribunal (FTT) had proceeded under a material error had significant legal, clinical, and procedural consequences.
Unlawful Continued Detention
The most direct consequence was that JB remained deprived of his liberty based on a factual error. The FTT had found that psychological treatment—described as “key and entirely appropriate”—was available, when in fact it was not. The UTT accepted that this mistaken understanding materially influenced the FTT’s decision. As stated at paragraph 29 of the UTT’s judgment, the error could not be considered immaterial, and the decision had to be set aside. This means that JB was detained for a period of time without a lawfully constituted justification, breaching the safeguards of the Mental Health Act 1983.
Remittal to a New Tribunal
As a result of the error, the UTT exercised its powers under section 12 of the Tribunals, Courts and Enforcement Act 2007 to set aside the FTT’s decision. The matter was remitted to be heard afresh by a differently constituted FTT. This outcome was necessary to restore procedural integrity and ensure that the issue of JB’s continued detention would be assessed on a proper legal and evidential footing.
Professional and Ethical Lessons
Although the responsible clinician who gave evidence had passed away by the time the matter was reconsidered, the case underlines the lasting impact of inaccurate clinical evidence in legal proceedings. Even absent any live regulatory process, the implications remain highly relevant to other practitioners. For clinicians currently appearing before tribunals, the case serves as a concrete reminder of the duties set out in the General Medical Council’s guidance on providing evidence, revised in 2024. Evidence must be accurate, not misleading, and transparently reflect the current treatment plan.
The events in JB v Elysium Healthcare underscore the ethical and regulatory responsibilities that psychiatrists must uphold when participating in legal processes. Although the Upper Tribunal (UTT) did not make findings about the deceased clinician’s conduct, the case raises wider concerns about the interface between professional witness evidence, clinical governance, and legal safeguards.
The Duty to Provide Accurate and Non-Misleading Evidence
The General Medical Council’s (GMC) guidance—Providing witness statements or expert evidence as part of legal proceedings (2024)—makes clear that doctors must take all reasonable steps to ensure the information they provide is both accurate and not misleading. This obligation extends to professional witness roles, including responsible clinicians giving evidence to Mental Health Tribunals.
In this case, the responsible clinician presented the psychological treatment as available, despite there being no plan to offer it. Although the clinician had passed away before the issue was reconsidered, the consequences of the evidence remained significant: the Tribunal made a decision it would not have reached had it known the full facts.
Ethical Accountability Beyond Regulatory Reach
Because the clinician was no longer alive, the question of professional misconduct did not come to be examined by the GMC. However, the case still carries normative significance for practising doctors. It illustrates that even in the absence of regulatory action, clinicians have a continuing professional obligation to scrutinise the accuracy of their contributions to legal decision-making.
Misrepresentation—whether through commission, omission, or overstatement—can lead to serious consequences, including unlawful detention. The role of the clinician is not merely to support institutional processes but to give clear and truthful accounts of care plans, limitations, and contingencies.
Implications for Clinical Governance and Service Oversight
The case also raises questions about internal oversight mechanisms within secure or forensic settings. Where psychological treatment is discontinued or withheld, the reasons should be recorded transparently and reflected in the care plan. If clinicians are not in a position to confirm that treatment will resume, this uncertainty must be clearly conveyed to the Tribunal.
Ultimately, if a therapy is withdrawn or withheld there must be brutal documentation of the reasons for doing so – and such decision must be fully disclosed at Tribunal.
This case should encourage all clinicians to engage with their professional guidance proactively. It serves as a reminder that accuracy in legal evidence is not simply a legal expectation—it is a core element of ethical medical practice.
Practical Lessons for Clinicians Participating in Tribunal Proceedings
The outcome in JB v Elysium Healthcare offers a series of concrete lessons for clinicians—particularly psychiatrists—who present evidence to First-tier Tribunals (FTTs). While many of the issues will be most familiar to those working in forensic or secure settings, the principles extend to all mental health professionals engaged in legal processes under the Mental Health Act 1983.
The case of JB draws out that in some cases keeping the offer open has important legal significance, even if it seems to be a “waste of time and resources.”
Ultimately, if a therapy is withdrawn or withheld there must be brutal documentation of the reasons for doing so – and such decision must be fully disclosed at Tribunal.
This case should encourage all clinicians to engage with their professional guidance proactively. It serves as a reminder that accuracy in legal evidence is not simply a legal expectation—it is a core element of ethical medical practice.
Do not assume—verify the treatment position
Before stating that a particular intervention is available or planned, clinicians must confirm this with the treating team and relevant documentation. If treatment has ceased or is subject to conditions (such as engagement or staffing), this should be stated clearly. Vague assumptions or therapeutic optimism may result in misleading the Tribunal.
Distinguish between theoretical availability and actual provision
The Mental Health Act requires that “appropriate treatment is available”, but this means available in reality, not merely in principle. As confirmed in this case and others (e.g. Rooman v Belgium), treatments which are technically possible—but not in fact offered—do not meet this standard. Tribunals rely on accurate accounts of current care, not hypothetical future pathways.
Keep contemporaneous records consistent with Tribunal evidence
If evidence is given that therapy will be offered, this should be documented in the patient’s care plan. Conversely, if therapy is paused or discontinued, the reasons should be recorded and shared with the legal team. In this case, had internal documentation clearly stated the decision to withhold therapy, it might have prevented confusion or misrepresentation.
Study and reflect on regulatory guidance
Clinicians involved in legal proceedings should be familiar with the GMC’s 2024 guidance Providing witness statements or expert evidence as part of legal proceedings.
Legal Lesson: What Constitutes “Available” Treatment under the Mental Health Act
In the context of detention under the Mental Health Act 1983 (as amended), the term “available treatment” means more than the treatment being theoretically deliverable within an institution. It refers to treatment that is genuinely available to the patient as part of their actual care plan.
This position is supported by:
- Explanatory Notes to the MHA 2007 (para 31): > “It is not enough that appropriate treatment exists in theory for the patient’s condition. The test requires that appropriate treatment is actually available for the patient.”
- UTT’s interpretation in JB v Elysium Healthcare [2025] UKUT 9 (AAC): The Tribunal concluded that treatment is only “available” if the hospital is willing and intending to offer it to the patient, not merely because it has the resources to do so.
- European jurisprudence (e.g. Rooman v Belgium [2019]): Deprivation of liberty must be linked to access to real and effective therapeutic support, not hypothetical provision.
In JB, psychological therapy was described in evidence before the FTT as available and planned. In fact, there was no intention to provide it, a fact later revealed through the patient’s audio recordings and confirmed by a new responsible clinician. The Upper Tribunal determined that this factual misstatement led the FTT to unlawfully find the criteria for detention were met. The case clarifies that “available treatment” must mean treatment that is not just possible, but actively offered.
Conclusion
The case of JB v Elysium Healthcare serves as a stark reminder of the profound impact that inaccurate or misleading evidence can have on patients’ Human Rights. This article draws out the importance of ethical accountability as a regulatory requirement and a cornerstone of professional integrity.
Clinicians must navigate the delicate balance between therapeutic optimism and factual accuracy, ensuring that their contributions to legal processes are grounded in reality. The lessons from this case extend beyond the immediate parties involved, offering a broader reflection on the interplay between clinical governance, legal safeguards, and ethical practice.
‘Availability’ of an ‘appropriate treatment’ means not just available in the health facility but directly and readily available to the detained patient. It is no different to making a vaccine shot available to a patient (albeit not detained) in a physical health facility: having the vaccine available does not mean, putting it on order, or saying ‘subject to staff availability’; it means ‘you can have it served anytime you’re ready‘ or ‘we can give you the jab now if you’re ready‘.
Ultimately, the pursuit of justice and the protection of individual rights hinge on the commitment to truthfulness and transparency. This case challenges all stakeholders—clinicians, legal representatives, and tribunal members—to uphold these principles in their respective roles.
