The High Court of England & Wales has quashed a decision of the Legal Aid Agency refusing exceptional case funding to a claimant with severe anorexia who sought assistance in applying for authorisation to receive supervised psilocybin treatment. In R (EB) v Director of Legal Aid Casework, the court held that the refusal was founded on a fundamental misunderstanding of the nature of the proposed application and failed to comply with the statutory framework and governing authority.
The claimant, who has long suffered from anorexia with serious physical and psychological consequences, had previously participated in a clinical trial at Imperial College London and reported significant benefit from psilocybin administered in a clinical setting. As psilocybin is a controlled drug, its medical use requires authorisation from the Home Secretary under the Misuse of Drugs Regulations 2001. The claimant therefore sought legal aid to pursue such an application.
Because the proposed proceedings fell outside the ordinary scope of civil legal aid, funding depended on an exceptional case determination under section 10(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The claimant argued that refusal of funding risked breaching her rights under Article 8 of the Convention, given that the application concerned access to medical treatment. In assessing that contention, the Legal Aid Agency was required to apply the principles set out in R (Gudanaviciene) v Director of Legal Aid Casework, including consideration of the importance of the issues at stake, the complexity of the process and the claimant’s ability to represent herself effectively.
The Agency rejected the application on the basis that Article 8 was not engaged, characterising the matter as a proposal for personal possession and use of psilocybin rather than a request connected to healthcare. Deputy High Court Judge Susie Alegre held that this analysis was plainly incorrect. The proposed application concerned supervised medical treatment, not unsupervised personal drug use. By proceeding on a false premise, the Agency failed to conduct an effective assessment of the engagement of Article 8 and did not properly consider the risk of a breach for the purposes of section 10(3)(b).
The court further found that the Agency had not meaningfully assessed the claimant’s particular circumstances, including the impact of her condition on her capacity to navigate a legally and procedurally complex process. Although aspects of the procedural assessment were rational, the overall decision did not comply with the approach mandated in Gudanaviciene. The refusal was therefore unlawful and was quashed, with the Agency directed to reconsider the application.
In declining to withhold relief, the court observed that it was not possible to conclude that the outcome would inevitably have been the same absent the identified errors, particularly where the decision maker had failed to engage properly with the facts of the case.