Legal Aid Agency compelled to reconsider application by anorexia patient for legal aid for psilocybin treatment
28 February 2026
How should the Legal Aid Agency (LAA) respond when a person with anorexia, which has had a “severe and debilitating impact on her physical and mental health” for along time, applies for legal aid to assist her with making an application to the Home Office for permission for her medical team to treat her with psilocybin (the main psychoactive component in various mushrooms commonly referred to as magic mushrooms)?
In R (EB) v Director of Legal Aid Casework [2026] EWHC 402, the High Court considered a challenge to the LAA’s refusal of legal aid for exactly that purpose. The Claimant had been a participant in a clinical trial at Imperial College London (a global leader in psychedelic research, and had found the treatment highly effective with no side effects ([4]). Psilocybin, though, is a controlled drug, and cannot be used even medically without authorisation from the Home Secretary under Section 5 of the Misuse of Drugs Regulations 2001 (the Regulations), which is far from straightforward.
The Application to the Legal Aid Agency
A grant of legal aid for an application under the Regulations requires an ‘exceptional case determination’ under section 10(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which provides that:
“(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998)
[…]
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.”
In R (Gudanaviciene) v Director of Legal Aid Casework and another (British Red Cross Society intervening) [2014] EWCA Civ 1622, the court considered the interpretation of section 10(3) in the particular context of Article 8, ECHR (the right to a private and family life). Article 6, ECHR (the right to a fair trial) requires that the process by which Article 8 rights are determined is fair,, accessible, and that individuals can be involved in that decision-making process sufficiently to protect their interests. This may well mean state funded legal representation, depending on the facts, but this is a context-sensitive question that depends on all the circumstances of the case (Gudanaviciene at [71]-[72]).
In the circumstances of the case, Gudanaviciene required the LAA to consider the importance of the issues at stake in the application, the complexity of the procedural, legal and evidential issues, and the Claimant’s ability to represent herself ([46]).
The Claimant’s application was premised on her contention that her situation engaged Article 8, because it concerned the provision of healthcare. The LAA, however, rejected the Claimant’s application, holding that article 8 was not engaged (so there was no risk of a breach):
“It is not evident that this situation here… concerns “healthcare” or “treatment.” This matter concerns the client’s proposal, as an individual, to possess and take psilocybin rather than be provided with medical or psychological healthcare or treatment, the therapeutic value of psilocybin treatment having, to date, not yet been proven scientifically.”” ([27])
The Court’s Review of the Legal Aid Agency’s Decision
The Court found that the LAA had fundamentally misunderstood the nature of the Claimant’s application. DHCJ Susie Alegre held that the LAA had:
“base[d] their analysis of Article 8 on the incorrect assumption that the Claimant’s application does not relate to medical or psychological healthcare or treatment. That is clearly wrong” ([33])
It was
“clearly premised on the misconception that the application relates to personal drug use for reasons other than healthcare.” ([34]).
In fact, the Claimant was proposing not “personal, unsupervised use of psilocybin” but its use as part of “supervised medical treatment”. This being the case, the LAA’s assessment of whether Article 8 was engaged was “based on a false premise” can the LAA “ cannot have made an effective assessment of the engagement of article 8” ([35]).
Whilst it was not clear whether refusal of legal aid in these circumstances meant a risk of breach of Article 8, which is a separate question from its engagement ([41]), the LAA’s error meant that the decision had considered the risk of a breach were legal aid not granted, so had “failed to exercise discretion under section 10(3)(b) by having regard to the risk of breach of a convention right in the circumstances before him.” ([42]).
This was sufficient to render the refusal unlawful, but the court went on to consider whether the LAA had also failed to comply with the guidance in Gudanaviciene. The LAA had determined that the application the Claimant had to make under the Regulations was not “so complicated that the client, by having to do this without legal aid assistance, would be prevented from making an effective initial application.” ([47]).
Here too, the LAA’s misconception about the nature of the application meant it “did not grasp the issues at stake at all and therefore were not in a position to weigh up their importance.” ([49]). Whilst the LAA did make a rational assessment of the complexity of the procedure ([50]), there was no evidence that the LAA had “considered in any meaningful way the circumstances of the Claimant and the particular challenges she has as a result of her condition”, and so her ability to represent herself ([51]). The LAA had, then, also failed to make a decision compliant with Gudanaviciene ([53]).
The Court was asked to decline to quash the decision because it would not have been substantially different without the errors of law identified, but this was given short shrift. DHCJ Alegre held that in circumstances where “the decision maker did not consider the circumstances of the case properly, or at all”, it was impossible without assessing the merits of the underlying decision (which the court is not permitted to do: see [68]) to determine whether the outcome would have been the same. The decision was therefore quashed and the LAA ordered to retake it ([7])
Comment
The Claimant suffers profoundly from anorexia. It affects her mood, concentration energy levels and memory, controls her routine and behaviours, and leaves her “unable to work or travel or manage much else beyond regulating her exercise and calorie intake”. She has, though, managed to access a degree of relief through an experimental treatment with no side effects. That treatment is widely available (though not lawfully), and grows untended in various patches of forest around the country even while it is extremely difficult for a doctor to prescribe it to a patient in dire need. If you watch footage of Glastonbury on the BBC, it is beyond doubt that the crowd shown on screen will contain people using the same substance the Claimant wishes to be permitted to use under medical supervision, for far less pressing reasons and with apparently far less attention from the Home Office.
The LAA’s mischaracterisation of the Claimant’s application (and comment of questionable veracity that “the therapeutic value of psilocybin treatment [has] not yet been proven scientifically”) is emblematic of the systemically narrowminded approach the government has taken to drugs and their use, particularly in a medical context, for decades. South Africa’s constitutional court, meanwhile, has recognised a right to possess Cannabis, including for non-medical reasons, under the ambit of their equivalent to Article 8, on the basis that “it can legitimately be said that the right to privacy is a right to be left alone”, which encompassed a degree of protection against intrusion from the state in relation to the cultivation and use of psychoactive plants.
The Family Division of the High Court, last year, in a case which makes for extremely harrowing reading (but is summarised on the Mental Capacity Law and Policy Blog), gave permission in a best interests decision for a different patient with anorexia to be admitted to an intensive care unit and fed under sedation, against her wishes, because the risk death was so great were the treatment not undertaken. The benefits of the possibility of a side-effect free means of granting some relief to someone suffering from anorexia should be beyond obvious; apparently to the Legal Aid Agency, this is not so.
More widely, this case is illustrative of the self-defeating nature of taking such a slip-shod approach to denying applications for exceptional case funding: the LAA could, once it realised it had fundamentally misunderstood the Claimant’s application, saved time and money by simply retaking it. It did not, and I cannot do better than DHCJ Alegre’s comment on its folly in this regard:
“It is frankly astonishing that, in a case about the allocation of public funds, even once permission had been granted on all three grounds, the Defendant chose to continue to defend an indefensible decision at trial. In doing so, they incurred significant costs instructing counsel to put forward complex legal arguments in an effort to cure the obvious fundamental defects of the decision instead of simply reissuing a decision based on the actual circumstances of the case at hand.”
Jasper Gold is a barrister at 1 Crown Office Row Chambers and is the Commissioning Editor of the UUK Human Rights Blog
