R (Khela) v Brandon MH Unit [2010] EWHC 3313 (Admin)

This renewed application for permission to judicially review a Tribunal decision and to quash the RC's previous diagnosis was dismissed and the claim found to be totally without merit.

External link

Possible Bailii link (not there when last checked, but it might have appeared since 0700 this morning!)

Judgment (Crown Copyright)

The judgment will be reproduced below until it is available on Bailii.



                                                                    CO/9625/2010



Neutral Citation Number: [2010] EWHC 3313 (Admin)


IN THE HIGH COURT OF JUSTICE


QUEEN'S BENCH DIVISION


THE ADMINISTRATIVE COURT



                                                         Royal Courts of Justice




                                                                          Strand




                                                                 London WC2A 2LL




                                                      Friday, 12th November 2010









                                  B e f o r e:




                          HIS HONOUR JUDGE THORNTON QC




                     (Sitting as a Deputy High Court Judge)









                                    Between:




                     THE QUEEN ON THE APPLICATION OF KHELA




                                                                        Claimant




                                       v




                           BRANDON MENTAL HEALTH UNIT




                                                                       Defendant









              Computer‑Aided Transcript of the Stenograph Notes of




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The Claimant appeared in Person


Mr M Barnes (instructed by Bevan Brittau) appeared on behalf of the Defendant








                                J U D G M E N T




                                 (As approved)









                                Crown copyright©








1.     THE DEPUTY JUDGE:  Miss Harpreet Kaur Khela seeks by this renewed
application permission to move for judicial review a finding by the first tier
Tribunal in the Health Education and Social Care Chamber, otherwise known as the
Mental Health Tribunal, on 31st March 2010 and in particular the part of the
decision in which findings were made as to the claimant's mental condition. The
claimant contends that the procedure that was followed unfairly considered her
case. The Tribunal did not show her case the respect that it was entitled to be
shown; it did not fully consider or fairly evaluate the evidence that was
advanced on her behalf and made findings that were not appropriate, particularly
in relation to medication that she should take.


2.     The claimant was represented at that hearing by a solicitor and a notice
of appeal was served.  I should have said that the reason for the Tribunal
sitting was that the claimant had previously been sectioned under section 2 and
the decision was that the claimant should remain detained and the decision
itself, which I have considered, appears to have been reached following the
appropriate steps and applying the appropriate law.  But it is the method by
which the Tribunal reach their decision and the findings I have summarised that
the claimant is now concerned about.


3.     But following the notice of appeal being served, it is clear from a
consultant's report, which was prepared by the consultant psychiatrist, who is
the claimant's responsible clinician, that the claimant was initially converted
into a section 3 detained patient on 16th April 2010, that is a few days after
the Tribunal hearing, and on 22nd June was discharged both from hospital and
from the Mental Health Act.  I am informed by the claimant, who represents
herself today and has been extremely helpful, courteous and clear in all that
she has said, that she was advised by her solicitor that there was no way that
the appeal could be heard and it was therefore abandoned because she had been
discharged.


4.     I have heard at length about the claimant's situation.  I do not propose
to summarise what she told me in this ruling, since it is not strictly relevant
to her application today.  I will say that it is clear that the claimant
continues to be subject, as she sees it, to injustice and to various factors
which certainly, if her case and her beliefs are found to be correct, would
warrant her being represented at hearings quite outside the Administrative Court
in relation to her family and her child.  However, for today's purposes I must
focus on her complaint against the finding of the Tribunal.


5.     The first thing that I should point out is that, if her complaint really
is in relation to the Tribunal hearing, her complaint should have been addressed
to the first tier Tribunal itself and not to the hospital.  But it is clear that
the claimant also complains about the diagnosis of her responsible clinician and
she is seeking to obtain relief, in the legal sense, that is to say an
Administrative Court hearing, whose aim would be in some way to quash the
diagnosis of the responsible clinician and other clinicians in the relevant
hospital and to obtain what she sees is her right under the Human Rights Act to
be diagnosed correctly, even though that diagnosis is historic and is no longer
giving rise to any restraint on her liberty or other aspects of her life.


6.     The short answer to the complaints are two‑fold.  The first is that, even
assuming that there is a remedy against the Mental Health Unit that she has
brought proceedings against the remedy that she seeks is not open to her in law.
There is no currently remedy available that enables the court to order that the
diagnosis of a doctor should be changed and corrected.  I should also have
pointed out that the unit that has been joined as the defendant is not the
appropriate defendant, even in relation to the claim against the hospital.  But
that is a formality because the correct responsible party for the unit, the
Leicestershire Partnership NHS Trust, is represented today, and I have given
permission for counsel to represent the Trust, Mr Matthew Barnes.  On behalf of
the Trust he has consented that that Trust should be substituted as the named
defendant in replacement of the Brandon Mental Health Unit.


7.     Therefore, that particular difficulty has been overcome.  But as against
the Trust, for the reasons I have given there is no available remedy.  But as
against the Tribunal, had they been a party and as against the Trust in relation
to this second complaint, there is also no remedy in law, even if the
appropriate parties were before the court.  The complaint, as I have indicated,
is as to the procedure followed by the Tribunal.  I have not gone into in any
detail what happened on that occasion, on 31st March.  It is not for me to
express any views as to whether the Tribunal were disrespectful or as to whether
it was appropriate for the Tribunal, which of course contained a medical member
and had received evidence both in writing and orally from the responsible
clinician, whether it was in order for the Tribunal to reach conclusions as to
the appropriate medication that the claimant should take or as to diagnosis,
historic and actual, of her illness.  But whatever the situation was, it is now
both inappropriate and too late to make any complaint.  It is too late because
there was an appeal but the claimant was discharged and there is in law no
further avenue of appeal, at any rate as the claimant was advised.  In those
circumstances, this court will not intervene since the claimant has had full
remedy for the complaint that she had at the time.  It is also inappropriate
because there is no useful purpose, I regret to inform the claimant, for her to
seek to unscramble a diagnosis of a historic nature about her in relation to a
condition which she no longer suffers from.  It would therefore serve no purpose
at all for the court at this historic moment in time, many months after the
decision had ceased to have any live practicable purpose, to re‑investigate
procedures that took place at the time of the original decision.


8.     For all those reasons therefore, I must dismiss the claimant's
application.  But I direct that in substitution for the Brandon Mental Health
Unit the defendant name should be the Leicestershire Partnership NHS Trust.


9.     I will return the document that Miss Khela has given me and I will also
return a copy of the report.  Is there anything further that you wish.


10.     MR BARNES:  My Lord I do invite my Lord to consider marking this case as
being totally without merit as it indeed it was marked on the papers.  My Lord
has not dealt with that.


11.      THE DEPUTY JUDGE:  I will deal with that.


12.     I am asked to mark this case as totally without merit and therefore, for
the reasons I have given, I do find and do mark the case as being totally
without merit.  Thank you very much.  Thank you Miss Khela.