[2025] UKUT 009 (AAC)

To establish a mistake of fact amounting to an error of law four requirements must be met:

Dr Kasmi’s evidence essentially confirms that JB’s previous responsible clinician misled the Tribunal on the issue of whether psychological therapy would be offered to JB at The Spinney. Dr Kasmi has indicated that it was decided late in 2022 to discontinue psychological therapy and, by the date of the hearing before the Tribunal, there was “no intention to restart psychological sessions”.

While other therapies had been undertaken (successfully, in Dr Kasmi’s opinion), Dr Kasmi’s evidence was that the therapy that remained to be done was “largely to do with mental disorder and its risk to violence. However, this proved limited and counterproductive. It was therefore stopped.” Dr Kasmi said “My view is that whilst psychological therapies are available, they are not being given…”

The recordings made by JB immediately following the hearing before the Tribunal, adduced in this appeal, establish that Dr Al Noufoury did not intend that JB would resume psychological therapy. It is clear that the Tribunal was misled in this regard.

I am therefore satisfied that limbs a. and b. in paragraph are satisfied. The mistake of fact was clearly not of JB’s making, so limb c. is also satisfied. Limb d. is more nuanced.

It is not disputed by JB that the hospital has the resources to provide psychological therapy, and neither is it disputed that the hospital was not then willing to provide such therapy to JB.

Dr Kasmi says that psychological therapies are “available” but they are “not being given”. However, as established both in Rooman v Belgium [2019] ECHR 105 and SF v Avon and Wiltshire [2023] UKUT 205 (AAC), [2024] 1 WLR 1540, appropriate medical treatment cannot be said to be “available” to a patient if the detaining authority is unwilling to provide it. I conclude that psychological therapy was not truly available to JB.

It may well be that the Tribunal would have concluded that appropriate medical treatment was available to JB aside from the psychological therapy upon which the Tribunal relied, in which case the Tribunal’s mistake of fact about psychological therapy being available to JB at The Spinney would have been immaterial. 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”. Limb d. is, therefore, also satisfied.