R (Khela) v Brandon MH Unit  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.
Judgment (Crown Copyright)
The judgment will be reproduced below until it is available on Bailii.
CO/9625/2010 Neutral Citation Number:  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 WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) 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.
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