Supreme Court dismisses appeal for leave to sue hospital under Mental Treatment Act 1945 due to lack of bad faith grounds.

THE SUPREME COURT

2000/329

Denham, J.

McGuinness, J.

Geoghegan, J.

BETWEEN

LOUIS BLEHEIN

APPLICANT/APPELLANT

AND

ST. JOHN OF GOD HOSPITAL

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Judgment of Mrs Justice Catherine McGuinnness delivered the 31st day of May 2002

In these proceedings the Applicant/Appellant sought leave of the High Court pursuant to Section 260(1) of the Mental

Treatment Act 1945 (as amended) (“the 1945 Act”) to bring proceedings against the Respondent hospital in connection with

the exercise of its powers and duties under the 1945 Act.

Section 260 of the Act of 1945, as amended by Section 2(3) of the Public Authorities (Judicial Proceedings) Act 1954 provides

as follows:-

“260(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this

Act, save by leave of the High Court, and such leave shall not be granted unless the High Court is satisfied that there are

substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or

without reasonable care.

(2) Notice of an application for leave of the High Court under sub-section (1) of this section shall be given to the person

against whom it is proposed to institute the proceedings, and such person shall be entitled to be heard against the

application.

(3) Where proceedings are, by leave granted in pursuance of sub-section (1) of this section, instituted in respect of an

act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the

Plaintiff unless it is satisfied that the Defendant acted in bad faith or without reasonable care.”

The draft plenary summons which the Applicant sought leave to issue claims declarations that:-

(a) the orders for the detention of the Plaintiff in St John of God Hospital, Stillorgan, Co. Dublin, made by the Defendant

his servants and/or agents on 26th day of February 1984, on 30th day of January 1987 and on 18th day of January 1991

are fraudulent documents.

(b) The orders for the detention of the Plaintiff referred to in (a) above were made without statutory authority, violate

the guarantees of due process of law; that they impinge on the guarantees of the Constitution of Ireland 1937; that

they were made in violation of the principles of fair procedure, contrary to natural and constitutional justice and that

they are thereby null, void, invalid and of no effect.

(c) The detention of the Plaintiff by the Defendant, his servants and/or agents, in the above named hospital from the

25th day of February 1984 to the 16th day of May 1984, from the 29th day of January 1987 to the 16th day of April

1987 and from the 17th day of January 1991 to the 7th day of February 1991 was grounded on fraudulent

misrepresentation; was effected without statutory authority; violated the guarantees of due process of law, was

achieved by means that were contrary to natural and constitutional justice, violated the provisions of the Constitution of

Ireland 1937 and constituted false imprisonment.

(d) The compilation of a file or dossier, in relation to the Plaintiff, by the Defendant, his servants and/or agents, was

unlawful for the reasons set out in (b) above, was contrary to natural and constitutional justice and constituted an

invasion of the constitutional right to privacy of the Plaintiff.

(e) The intoxication of the Plaintiff by the Defendant, his servants and/or agents with neuroleptic/psychotropic drugs

during the aforesaid periods of detention, constituted a violation of the Plaintiff’s constitutional right to dignity, to

privacy, to bodily integrity and to self determination and was contrary to natural and constitutional justice.

(f) The said intoxication of the Plaintiff by the Defendant, his servants and/or agents, with neuroloptic/psychotropic

drugs during the said period of detention and contrary to his express wishes constituted assault, battery and trespass to

the person.

(g) That the said intoxication of the Plaintiff by the Defendant, his servants and/or agents, constituted torture, inhuman

and degrading treatment.

In addition the Applicant (Plaintiff) claims damages, costs and interest.

The factual background to the case may be briefly stated as follows. The Applicant was at the material times a secondary

school teacher in Portumna, Co. Galway. He is a married man but has been separated from his wife for some years. The

Applicant has been admitted to St. John of God Hospital, Stillorgan, on three occasions, from the 25th February 1984 to the

16th May 1984; from the 29th January 1987 to the 16th April 1987; and from the 17th January 1991 to the 7th February 1991.

On his initial admission in 1984 he was diagnosed by a consultant psychiatrist, Dr. P.J. Cullen, as suffering from paranoid

schizophrenia. It would appear that the psychiatrist in question considered that the Applicant was suffering from paranoid

delusions concerning his wife’s fidelity and similar diagnosis were reached by two general practitioners, Dr. Sean G. Murphy and

Dr. Fionnuala Kennedy.

The Applicant previously sought leave to bring a different set of proceedings arising out of the same facts against different

Defendants, namely the certifying doctors, his wife and a member of the Garda Siochana who was present when he was

detained. Leave to bring these proceedings was refused by the High Court and, on appeal, by this Court (see Blenhein v Murphy

(No. 2) [2000] 3 IR 359). Prior to the hearing of the appeal in that case by this Court the Applicant applied to amend his notice

of appeal to include a new ground of appeal challenging the constitutionality of Section 260 of the Act of 1945. This ground had

not been raised by the Applicant in the High Court. This Court refused that application, holding that it was only in exceptional

circumstances that a Plaintiff might amend a notice of appeal so as to argue a ground not argued in the High Court and that

such circumstances did not exist in that case. (See Blenhein v Murphy [2000]2 IR 231).

In the present proceedings the Applicant, both in the High Court and in this Court, appeared unrepresented, as a personal

litigant.

The application brought before the High Court was grounded on an affidavit of the Applicant sworn on the 27th October 1999. A

replying affidavit was sworn by Mr Ray Leonard, secretary manager of the Respondent hospital on 19th November 1999. A

supplemental affidavit was sworn by the Applicant on the 12th January 2000. The application was heard by the High Court on

the 28th and 29th June 2000. O’Sullivan J. delivered his reserved judgment on 6th July 2000.

In the hearing before the High Court the Applicant made nine submissions, which are referred to in numbered paragraphs in the

judgment of the learned High Court judge. I shall refer to these submissions in greater detail later in this judgment. In his

judgment O’Sullivan J. ruled against the Applicant in respect of all his submissions with the exception of a submission whereby

the Applicant contended that the hospital of the Order of St. John of God was not designated by law as a place of detention.

On 6th July 2000, having given judgment in the matter, O’Sullivan J. ordered that the Respondent “be at liberty to serve on the

Applicant on or before the 12th day of July 2000 at 5 p.m. and file on or before the 17th July 2000 an affidavit exhibiting

therein the ministerial order designating the Respondent hospital as a place of detention and that the Applicant be at liberty to

file a replying affidavit thereto on or before the 17th day of July 2000.” While an affidavit was sworn by Mr Ray Leonard on

12th July 2000 and a further affidavit by Mr Blehein on 13th July 2000, it was acknowledged to this Court by counsel for the

Respondent that the proofs sought by the learned High Court judge had not been produced to the Court by the date provided in

the order of 6th July 2000. However, counsel for the Respondent informed this Court that the necessary documentation had

subsequently been produced to Mr Blehein himself. Mr Blehein acknowledged that this was so and accepted that in fact the

Respondent hospital was designated by law as a place of detention. He explained to this Court that, despite the leave granted

to him by the learned High Court judge, he was therefore no longer interested in pursuing the issue of the designation of the

hospital. It is clear that the Applicant’s approach in regard to this issue is both correct and sensible.

During the course of the hearing of the Applicant’s proceedings before the High Court the Applicant raised the issue of the

constitutionality of Section 260 of the Act of 1945. This constitutional issue was outside of the ambit both of his notice of

motion and of his proposed plenary summons and statement of claim. The Attorney General had not been put on notice of any

such constitutional claim. The constitutional issue accordingly was not argued before the High Court nor was it dealt with by

the learned trial judge in his judgment.

As has already been noted, the learned High Court judge in his judgment of the 6th July 2000 held that with the exception of

the point in relation to the status of the Defendant hospital the Plaintiff had not established substantial grounds for contending

that the Defendant acted either in bad faith or without reasonable care. He then adjourned the proceedings to enable the point

in regard to the status of the hospital to be dealt with. The Applicant sought to amend his pleadings to include a challenge to

the constitutionality of Section 260 of the Act of 1945.

On 11th July 2000 the Applicant served a notice on the Attorney General pursuant to Order 60 Rule 1 of the Rules of the

Superior Courts. On the same day he served an amended Order 60 Rule 1 notice in the following terms:-

“Take notice that the above action is an application pursuant to the provisions of Section 260 of the Mental Treatment

act 1945 (as amended) for leave to institute legal proceedings against the Respondent claiming a number of declarations

and reliefs.

Take notice that at the hearing of the above entitled application before the Honourable Mr Justice O’Sullivan on Thursday

the 6th day of July 2000 the Applicant raised the issue of the validity of the said Section 260 having regard to the

provisions of the Constitution of Ireland 1937. The hearing of the above application now stands adjourned to Tuesday the

18th day of July 2000 at 2 o’clock in the afternoon.

Further take notice that the Applicant will contend that the said Section 260 is repugnant to the provisions of the

following articles of the Constitution of Ireland 1937, namely Articles 5, 6,15, 34, 37, 38, 40, 41 and 43. The Applicant will

further contend that, when taken in conjunction with the powers conferred by Sections 185 and 186 of the said Mental

Treatment Act 1945, Section 260 constitutes an Act of Attainder.”

It appears that O’Sullivan J. acceded to the Applicant’s application. On the 18th July 2000 he ordered, inter alia, “that the

Plaintiff be at liberty to amend his pleadings herein to include (i) a challenge to the status of the Respondent not having the

approval of the Minister for Health pursuant to Section 158 of the Mental Treatment Act 1945 and (ii) a challenge to the

constitutionality of Section 260 of the Mental Treatment Act 1945.”

On 27th September 2000 the Applicant served on the Attorney General a “Supplement” to his previous Order 60 Rule 1 notice.

In this comprehensive document he listed 26 grounds for his contention that the provisions of Section 260 violated the

provisions of the Constitution of Ireland.

A further motion was brought by the Applicant by notice of motion dated the 22nd November 2000. This notice of motion does

not appear to be included in the book of appeal. On the hearing of the motion oral submissions were made by the Applicant, by

counsel for the Defendant and by counsel for the Attorney General. On 27th November 2000 O’Sullivan J. made the following

order:-

“IT IS ORDERED that the Plaintiff be at liberty to amend the said order (of 18th July 2000) by the substitution of:

‘IT IS ORDERED pursuant to Section 260 of the Mental Treatment Act 1945 (as amended) that the Applicant be at liberty

to institute proceedings against the Respondent hospital challenging the lawfulness of his detention in 1984, in 1987 and

in 1991 on the ground that, at the material times, the Respondent hospital was not designated by law as a place of

detention.’

The Court makes no order as to costs in the matter of this application pursuant to Section 260 of the Mental Treatment

Act.

“IT IS ORDERED that notwithstanding the Long Vacation the Applicant be at liberty to serve amended pleadings to include

a challenge to the validity of Section 260 of the Mental Treatment Act 1945 (as amended) having regard to the

provisions of the Constitution of Ireland, on the Respondent and on the notice party on or before the 20th day of August

2000 and that the respective parties do within four weeks from such service serve a reply to such challenge.

The Court doth reserve the question of costs in the matter of this constitutional challenge.”

For

“IT IS ORDERED that the Plaintiff be at liberty to amend his pleadings to include:

(1) A challenge to the status of the Respondent not having the approval of the Minister for Health pursuant to Section

158 of the Mental Treatment Act 1945 and

(2) A challenge to the constitutionality of Section 260 of the Mental Treatment Act 1945.

IT IS ORDERED that notwithstanding the Long Vacation the Applicant do serve amended pleadings herein on the relevant

parties on or before the 20th day of August 2000 and that the respective parties do within four weeks from such service

serve a reply to the said amendments.

The Court Doth reserve the question of the costs of this application’.

Where same appears on page 2 and 3 of the said order”.

On the 18th December 2000 the Applicant filed a notice of appeal against the judgment and order of O’Sullivan J. in the

following terms:

“Take Notice that at the expiry of ten days from the service hereof or at the first available opportunity thereafter the

Applicant/Appellant in the above entitled action will apply to this Honourable Court by way of appeal from the judgment

and order of the High Court (The Honourable Mr Justice O’Sullivan), save and insofar as same relates to costs. The said

judgment was delivered in part on the 6th day of July 2000 and completed on the 18th day of July 2000. The said orders

were made on the 18th day of July 2000 and were perfected on the 21st day of August 2000, they were adjusted by

consent on the 27th day of November 2000 and the said adjusted orders were perfected on the 7th day of December

2000. The said judgment and orders (a) closed the application herein without hearing the challenge made by the

Applicant to the validity of section 260 of the Mental Treatment Act 1945 (as amended) and hereinafter referred to as

‘the Act’, having regard to the provisions of the Constitution of Ireland 1937 and (b) refused the Applicant leave to issue

proceedings against the Respondent hospital pursuant to the provisions of the said Section 260 of the Act save on one

ground only. And take notice that the Applicant will contend that the learned trial judge did misdirect himself in

procedure in not admitting to hearing the Applicant’s challenge to the validity of Section 260 of the said Act and that he

will apply to this Honourable Court for an order placing the said and order of the High Court in abeyance, save and

insofar as same relates to costs, and remitting the case to the High Court for the trial of the action relating to the

challenge made by the Applicant to the validity of the aforementioned Section 260 having regard to the provisions of the

Constitution of Ireland 1937.

Or, and, in the alternative.

Take Notice that the Appellant will apply to this Honourable Court for an order reversing the said judgment and order of

the High Court and in lieu thereof an order granting the Applicant leave to issue proceedings against the above named

Respondent in the terms of the draft/plenary summons herein together with an order for costs.”

The Applicant then sets out in a number of paragraphs the proposed grounds for his appeal.

It will be seen, therefore, that there are two aspects of the Applicant’s/Appellant’s appeal. Firstly the Appellant seeks to have

his application pursuant to Section 260 remitted to the High Court for the purpose of trying his challenge to the constitutionality

of the section. Secondly, and in the alternative, he seeks to overturn the order of the High Court refusing him leave to bring

proceedings against the Defendant hospital as set out in his draft plenary summons.

When the appeal came on for hearing before this Court the Applicant in his oral submissions made clear that his proposed

challenge to the constitutionality of Section 260 was the matter foremost in his mind. He firstly argued that the constitutional

issue should be dealt with forthwith by this Court, without the necessity for any remission to the High Court. He based this

contention on an argument that the question of the constitutionality of the section should, as a matter of logic, be decided by

this Court before the Court went on to consider an appeal based on the wording of the section itself. If this submission were

not to be accepted by the Court, Mr Blehein then submitted that the case should immediately be remitted to the High Court in

order for that Court to hear the constitutional challenge. If he lost on that issue in the High Court, all issues could then be dealt

with together on appeal to this Court.

Senior Counsel for the Attorney General, Mr McGuinness, then made submissions in regard to these preliminary jurisdictional

points. Mr McGuinness pointed out that the Applicant’s challenge to the constitutional validity of Section 260 was raised late in

the proceedings and no arguments were either made or considered on the issue in the High Court. He submitted that in Blehein

v Murphy & Ors [2000] 2 IR 231 this Court had refused the same Appellant leave to raise the matter of the constitutionality of

Section 260 for the first time on appeal to that Court in circumstances where it had not been argued below.

Counsel went on to deal with the question of the locus standi of the Applicant. He argued that having been granted leave by

the High Court to challenge the lawfulness of his detention on one ground pursuant to the provisions of Section 260, the

Applicant was not, accordingly, a person aggrieved in that he had not been deprived of his right of access to the courts - it

had merely been curtailed. In the circumstances, his standing to challenge the constitutional validity of Section 260 must be in

doubt. It was premature to consider the issue at this stage. The Applicant had not yet exhausted all his remedies and thus he

had no locus standi to mount a challenge to the section. Should he succeed in the instant appeal, any such challenge would be

moot. Mr McGuinness relied on an earlier decision of mine in the High Court in Melly v Moran and North Western Health Board

(High Court unreported 19th June 1997) where the constitutional issue had been raised at first instance. In that judgment I

noted:-

“While counsel for the Plaintiff in his opening submissions referred in some detail to the proposed challenge to the

constitutionality of Section 260, he proposed that the first step to be taken by the Court was to decide within the

parameters of the present law whether leave should be granted to the Plaintiff to issue his proceedings. This preliminary

issue would fall to be decided within the terms of Section 260 and, depending upon the outcome, the Plaintiff could, if

necessary, pursue the constitutional issues at a later stage. Counsel for both Defendants and the Attorney General

agreed that this was the proper course to follow.”

This, counsel submitted, was the correct procedural path which should be followed by the Applicant in the instant case.

In addition, counsel for the Attorney General raised queries with regard to the course taken by the learned High Court judge in

permitting the Applicant to amend his Section 260 proceedings to include the challenge to the constitutionality of Section 260.

Mr McGuinness submitted that it was clear from the wording of Section 260 that the Applicant would not, in fact, require leave

pursuant to the section in order to issue proceedings challenging the constitutionality of the section itself. If and when the

Applicant had locus standi to initiate such proceedings, his correct course would be to issue a new plenary summons dealing

with that issue alone. The constitutional issue could then be fully argued in the High Court, with an appeal, if necessary, to this

Court.

Counsel for the Attorney General reserved his position as to the merits of any challenge to the constitutionality of Section 260.

Senior Counsel for the Defendant, Mr Fox, adopted the arguments made by Counsel for the Attorney General in regard to these

jurisdictional and procedural points. He also reserved his position as to the merits of the constitutional issue. For the present he

would confine himself to dealing with the substance of the appeal against the decision of the High Court on the Section 260

application.

Having heard the above submissions, the Court held that it was only in exceptional circumstances that the Supreme Court

would consider issues of constitutional law which had not been argued in the High Court, and that no such exceptional

circumstances existed in this case. The proper course for the Applicant in the circumstances was firstly to proceed with the

substantive issues of his appeal against the decision of the High Court judge.

Later in this judgment I will refer to the procedural issues arising from the Applicant’s proposed challenge to the constitutionality

of Section 260.

The learned High Court judge in his judgment had set out the various submissions made by the Applicant in the Court below,

together with his decisions thereon, in nine numbered paragraphs. In effect, the Applicant was now appealing against O’Sullivan

J’s decisions in eight of these paragraphs. He made his submissions to this Court in reference to the relevant paragraphs and it

is convenient to deal with them in the same way here.

1. The Applicant submitted that the High Court judge erred in holding that Form No. 7 under Section 185 of the Act of 1945

contained an order for detention, and that therefore his subsequent detention and treatment were invalid.

Section 185, where relevant, provides as follows:

“(1) Where it is desired to have a person received and detained in an approved institution as a temporary patient and as

a private patient, application may be made in the prescribed form to the person in charge of the institution for an order

(in this Act referred to as a temporary private patient reception order) to have such person received and detained as a

temporary patient and as a private patient in such institution.....

(4) An application under this section shall be accompanied by a certificate in the prescribed form signed by two

registered medical practitioners certifying that each of them has examined separately the person to whom the

application relates on a specified date not earlier than seven days before the date of the application...”

In his judgment O’Sullivan J. also drew attention to the terms of Section 5 of the Mental Treatment Act 1953 as follows:

“(1) Where, in the case of an application under...Section 185 of the principal Act, a medical certificate under the section

has been given, the following provisions shall have effect:-

(a) the applicant or any person authorised by him may, not later than seven days after the date of the

examination, take the person to whom the application relates and convey him to the institution in which it is

desired to have him received and detained;

(b) if the power conferred by paragraph (a) of this sub-section is exercised -

(i) Any of the persons specified in sub-section (4) of this section may receive and take charge of the person

to whom the application relates and detain him until the expiration of a period of twelve hours or, if the

application is granted or refused during that period, until it is granted or refused,...

(ii) in sub-section (1) of this section 'the date of the examination’ means -

(a) in the case of an application under section 185 of the Principal Act

(i) where the examinations to which the relevant medical certificate relates were made on

different dates, the earlier of those dates.”

These provisions have relevance to a number of the submissions made by the Applicant.

Mr Blehein points to the wordings of the statutory Form No. 7 which is exhibited in his grounding affidavit. At paragraph 6 of the

form the following words occur:-

“I hereby apply to have the person named in paragraph 1 received as a temporary patient and as a private patient.”

Mr Blehein argues that the application is therefore for the reception of the named person rather than for the reception and

detention of the person.

As pointed out by the learned High Court judge (and as submitted to this Court by Mr Fox, senior counsel or the Respondent)

this submission cannot survive the reading of Form No. 7 as a whole. In the first place the form is headed “Application,

Certificate and Order for the Reception and Detention of a Person as a Temporary Patient and as a Private Patient in an

approved Institution in Pursuance of Section 185 of the Act.” The form is divided into three parts. The first part headed

“Application” contains paragraph 6 quoted above. The second part consists of the certificate of the two registered medical

practitioners. The third part is headed “Order for Reception and Detention” and at paragraph 10 it is stated:

“I have considered the above application and certificate and I hereby order that the said person be received and

detained in the mental institution named in Part 1 of this form as a temporary patient and as a private patient.”

This statement is to be signed by the Chief Medical Officer or an authorised Medical Officer of the institution in question.

I would agree with the learned High Court judge in holding that notwithstanding the absence of the word “order” in paragraph 6

of Part 1 of the form, it is clear that Part 1 is an application for the order which is provided for by Part 3. I would therefore

reject this ground of appeal.

2. The Applicant submits, with regard to the first of the periods of his detention in the Respondent hospital, namely from 26th

February 1984 to 16th May 1984, that the order for his reception and detention was not made within seven days of the

relevant medical examination and was therefore ultra vires.

The relevant form as exhibited is dated 25th February 1984. Part II contains the certificates of the two medical practitioners.

As far as the second practitioner, Dr. S. Ahmed, is concerned, the date of examination is given as 25th February 1984 which

clearly comes within the terms of the section. The first certificate is signed by Dr Sean G. Murphy and gives four separate dates

for examination of the Applicant, being 13th February 1984, 14th February 1984, 16th February 1984 and 25th February 1984.

As set out above Section 5(2) of the Mental Treatment Act 1953 specifies that “the date of the examination” means “...where

the examinations to which the relevant medical certificate relates were made on different dates, the earlier of those dates.”

Both in the High Court and in this Court the Applicant submitted that the phrase “the earlier of those dates” meant that on

looking at the certificate by Dr. Murphy one must have reference to the first of his examinations which was carried out on the

13th February 1984 which was clearly more than seven days before the date of the making of the order for his reception and

detention - 26th February 1984. Senior counsel for the Respondent, again both in the High Court and in this Court, submitted

that the phrase “the earlier” must indicate the earlier of two dates rather than the earliest of a number of dates and that this

would refer to the two dates relevant to the examination of the person in question by two medical practitioners. After some

consideration the learned High Court judge held that the phrase “the earlier” indicated a comparison between two dates as

distinct from more than two dates. He then went on to consider what was the correct date of the examination by Dr. Murphy

where he had indicated four different dates on the form. Mr Fox submitted that in the case of Dr. Murphy there was one

examination which extended over four different days and that the date of that examination was the last of the four different

dates - 25th February 1984.

I would agree with the learned High Court judge’s conclusion that the intention of the legislature in both Section 185 of the

1945 Act and Section 5 of the 1953 Act is to ensure that no person should be detained in a mental institution on foot of an out

of date medical examination and that the relevant examination should be an up to date one. It seems to me that the fact that

Dr. Murphy’s latest examination was carried out on 25th February 1984 - the day before the order for Mr Blehein’s reception and

detention was made - is quite sufficient to bring his examination within the terms of the relevant legislation. In my view this

ground of appeal also fails.

3. In this connection Mr Blehein was permitted by this Court to bring further affidavit evidence in regard to the registration of

Dr. Ahmed as a medical practitioner. The upshot of this evidence is that the medical registration authorities do not appear to

have any record of Dr. Ahmed’s registration. They suggest that this record may have been mislaid during a move from one set

of offices to another. Dr. Ahmed himself on affidavit states that he was properly registered and is able to produce the receipt

for the registration fee which he paid at the time to the Medical Council. While some difficulty is created by the lack of a record

of Dr. Ahmed’s registration, it does not seem to me that this evidence is sufficient to establish that he is not a registered

medical practitioner as required by Section 185(4). The Applicant then submitted that there was no power under the relevant

statutes to provide for the Gardai to accompany a person authorised to receive and detain him as, he stated, had occurred in

the present case. He alleged that there was a form of arrangement or conspiracy between the certifying doctors, the Gardai

and the Defendant hospital (in the person of Brother James Davis, a psychiatric nurse) on the occasion of his detention.

As quoted above Section 5 of the Mental Treatment Act 1953 provides, inter alia, that any of the persons specified in Section

5(4) “may receive and take charge of the person to whom the application relates and detain him until the expiration of a

period of twelve hours or, if the application is granted or refused during that period, until it is granted or refused.” The persons

mentioned in Section 5(4) include a person in charge of the relevant institution where it is desired to have the person in

question detained and also the officers, assistants and servants and any medical officer of the institution in question. This

would give statutory authority for the presence of Brother James Davis.

In the case of private patients there is no provision in the Act of 1945 specifically authorising the Gardai to take part in the

reception or detention of a person in a mental hospital pursuant to Section 185. I would however agree with the learned trial

judge that the absence of such specific authorisation does not mean that the Gardai are acting illegally in any way in assisting

medical practitioners or relatives if asked to do so in what can often be a difficult situation. With regard to the allegation of

conspiracy by the various parties, it is clear that the relevant parties co-operated with each other and indeed that they may

have made arrangements in advance so to do. However such co-operation would not amount to a conspiracy to have the

Applicant wrongfully detained in the Defendant hospital. If the application is correctly made in accordance with Section 185 and

the other statutory provisions the hospital authorities may receive and take charge of the relevant person in connection with

whom the application is made. In my view this ground of appeal also fails.

4. The Applicant’s next submission is that he could not be detained in the hospital for more than 12 hours prior to the making of

the order providing for his reception and detention. He submits that the order was in fact made outside this period. In his

submission to this Court the Applicant based this contention on extracts from the nursing report and medical notes from the

hospital. These notes are dated (as far as can be ascertained) on the 2nd March 1984. One of the notes appears to be very far

from clear and indeed is not entirely legible. The other appears to state at the date 2nd March 1984 “has begun to agitate to

go - sheep lambing etc. wife contacted - says (query) he has arranged for sheep to be sold tomorrow - Cert had to be put

into action. Informed (on his request) that he has the right to challenge it. Continue medication.”

This is initialled, apparently by one of the medical staff. From this the Applicant argues that the order for his reception and

detention was not in fact made until at least the 2nd March 1984 and was later predated the 26th February 1984. The

Applicant also draws attention to a hand-written note in the margin of the second page of Form 7 which, he submits, reads Pt.

signed VOL. The Applicant submits that this means “patient signed voluntarily” and indicates that there was no need for the

order for reception and detention to be signed at that point.

At this distance in time it is difficult to be certain of the meaning of these hand-written notes, some of which are very difficult

to decipher. Mr Ray Leonard, secretary manager of the Defendant hospital, in his affidavit sworn the 19th November 1999 in

these proceedings, deposes as to the correctness of the relevant certificates and orders which were provided and made in the

Applicant’s case. He also, at paragraph 4 of his affidavit, refers to a challenge by the Applicant at the time to the order of 26th

February 1984. At that time the Applicant sought a second opinion and was examined by a Professor Meehan, Consultant

Psychiatrist. It appears that Professor Meehan at the time certified that the Applicant was in need of urgent inpatient care

during the period in question.

In my view the learned High Court judge was correct in concluding that there was not sufficient evidence before the Court to

establish that the order for detention was made outside the statutory twelve hour period. I would also dismiss this ground of

appeal.

5. At the time of his detention in the St. John of God Hospital the Applicant was diagnosed as suffering from Paranoid

Schizophrenia. In a letter dated 25th February 1984 Dr. Sean G. Murphy, one of the two doctors who signed the certificate

seeking the Applicant’s reception and detention, stated that the Applicant was suffering from serious delusions about his wife’s

fidelity and “believes she is having sexual affairs with at least six other men”. The Applicant submitted that the basis upon

which Dr. Murphy signed the certificate was that there was no proof that his wife was unfaithful and that therefore his

accusations of infidelity were the result of delusions. Prior to his hospitalisation the Applicant had employed private detectives

in an effort to establish evidence of his wife’s infidelity. He claims that the local Gardai interfered with the private detectives

and thus frustrated his efforts to obtain proof of the allegations which he was making against his wife. If the allegations were

true, and could be proved to be so, he was not deluded and not suffering from mental illness as alleged by Dr. Murphy.

In his submissions to this Court Mr Blehein argued that the medical personnel at the Respondent hospital were not entitled to

read the letter of Dr. Murphy dated 25th February 1984. It was not for them to go behind the actual certificate signed by Dr.

Murphy or to receive any further evidence from him.

In his submissions to this Court Mr Fox, Senior Counsel for the Respondent, argued that the Respondent was not obliged to go

behind the certificate of the registered medical practitioner. Once the certificate appeared to be in order there was no

obligation on the receiver to carry out researches into what particular matters were taken into consideration by the certifying

medical practitioner. In commenting on a similar submission made by counsel for the Respondents in the High Court the learned

High Court judge stated:-

“In my view this submission is correct. The onus is on the medical practitioners to carry out an examination and

complete the certificate. It is not for the receiving hospital to go behind this and therefore even if I were persuaded

that this submission is inherently correct I do not think it would give rise to a cause of action against this Defendant.”

In my view, the learned High Court judge was entirely correct in so holding. I would, however, add that this would not prevent

the Respondent from receiving information voluntarily proffered by the certifying medical practitioner, as in this case. Such

information would, of course, have to be assessed in the light of medical examinations carried out by the doctors in the

Respondent hospital itself.

6. A further submission was made in the High Court by the Applicant to the effect that he was released from the hospital on a

conditional or “trial” basis only. This related to the fact that he was released on the basis that he would continue to take

particular drugs or have regular injections; he found this humiliating. In this Court the Applicant submitted that to release him on

these conditions was “a reversal of the common law presumption of sanity”. In the present proceedings no evidence had been

called by the Respondent in regard to his actual mental illness. If he was sufficiently recovered to be released from hospital he

should have been released without conditions on the presumption that he was sane.

It is common knowledge that patients who have suffered from mental illness are frequently released from hospital on the basis

that they will continue to take medication as prescribed in order to ensure their continuing stability. Again I would accept the

finding of the learned High Court judge on the facts that there was no evidence before him that such treatment of the

Applicant was inappropriate in any way. Such a matter could not constitute “substantial grounds” on which to permit leave to

bring proceedings against the Respondent.

7. This ground of appeal refers to the Applicant’s admission to the St. John of God Hospital on 29th January 1987 and later on

17th January 1991. In regard to his admission in 1987 the Applicant in this Court drew attention to a letter written on 29th

January 1987 by Dr. Sean Murphy to Dr. P.J. Cullen, the doctor who was then in charge of the Applicant’s case in the St. John

of God Hospital. The Applicant submitted that the letter showed that in diagnosing him as once again suffering from Paranoid

Schizophrenia the doctor was relying not on his own examinations but on hearsay from the Applicant’s wife. It is clear from the

letter that the last time that Dr. Murphy examined the Applicant was on 8th October 1986, the Applicant submits, and this

would not be within the seven day period required under Section 185. Similarly in regard to his admission in 1991 the Applicant

submits that it is clear from Dr. Murphy’s letter of 16th January 1991 addressed to Dr. Patrick Turbidy of St. John of God

Hospital that he had neither seen nor examined the Applicant within the requisite seven day period. His diagnosis was again

based on hearsay from the Applicant’s wife and family.

At the time of the Applicant’s admission to hospital in 1987 the certificate of registered medical practitioners on the relevant

Form 7 under Section 185 were signed by Dr Sean Murphy and by Dr Fionnuala Kennedy. In each case the doctor stated that

their date of examination of the Applicant was 29th January 1987. The order for reception and detention of Mr Blehein was

made on the 30th January 1987. On the face of it this form was in order and, as stated above, it was not necessary for the

Respondents to go behind the certificates of the registered medical practitioners. In any case, the allegations of the Applicant

referred to the actions of Dr. Murphy, while his present proposed proceedings are against the Respondent St. John of God

Hospital. He has already on a previous occasion been refused leave to bring proceedings against Dr Murphy and other doctors

both by the High Court and by this Court.

The same situation applies in regard to his admission to hospital in 1991. The medical certificates state that the date of his

examination was 17th January 1991 and the order for reception and detention is signed by Dr. Turbidy on the 18th January

1991. This ground of appeal in my view also fails.

8. The Applicant also submitted in the High Court that the procedure adopted in receiving and taking charge of him was in

violation of his constitutional rights to fair procedures and in particular of his right to have notice of the intended detention and

the grounds upon which he would be detained, of his right to consult a lawyer and his own medical practitioner and to be heard

in advance of being detained. The learned High Court judge dealt with this submission as follows in his judgment:

“In my view, having given this submission careful thought, I do not think that the principles of procedural justice apply to

the operation of Section 185 of the Act of 1945 as expanded by Section 5 of the Mental Treatment Act 1953. The

legislature has adopted this particular method of providing for the detention of persons under the Act of 1945. There is

no challenge to the constitutionality of these provisions. The Plaintiff submits, however, that they must be applied in a

way which respects as far as possible the constitutionally protected rights of persons affected. It seems to me to be

quite inconsistent with the operation of these statutory provisions to impose upon them the further mechanisms

employed by the principle of audi alteram partem or other quasi judicial procedures. The legislature has entrusted the

initiation of this mechanism to the professional judgment of two registered medical practitioners and given that the need

for some such intervention arises, the particular mechanism to be employed is a matter for the legislature. In my view

the argument that the person who is the subject of an application under Section 185 of the Act of 1945 must be given

rights to be heard before an order is made is misconceived....Whilst of course detention of any citizen against his or her

will is a significant interference with the constitutionally protected right, I do not see that the operation of Section 185

must be preceded by the service of notice and the giving of an opportunity to be heard and present evidence as claimed

by the Plaintiff.”

It seems to me that the learned High Court judge was correct in so holding.

I would add, that in order for a person to be detained in a mental hospital under Section 185, two registered medical

practitioners must certify either (a) that the said person is suffering from mental illness, requires for his recovery not more than

six months suitable treatment and is unfit on account of his mental state for treatment as a voluntary patient, or (b) that the

said person is an addict and requires for his or her recovery at least six months preventive and curative treatment. The

legislation, which, of course he has the benefit of the presumption of constitutionality, is designed to deal with the situation

where persons are unfortunately suffering from serious mental illness. From a practical point of view, if the procedural steps

sought by the Applicant were to be required in all cases, the legislation, which is in essence designed for the protection and

treatment of ill persons, would swiftly become unworkable. As was pointed out by the learned High Court judge, and has been

pointed out by this Court in previous cases, the operation of Section 185 involves considerable encroachment upon the ill

person’s constitutional rights, in particular the right to liberty. This must be balanced against the ill person’s need for both

protection and treatment.

In my view this ground of appeal also fails.

The ninth ground of the Applicant’s application in the High Court concerned the status of the Respondent hospital. As already

explained above, the Applicant has correctly abandoned this ground.

I now turn to the Applicant’s proposed challenge to the constitutionality of Section 260. Had this been included in the

Applicant’s original application for leave, it would in any case have been necessary for the Court to deal firstly with the other

matters raised in the application before proceeding to consider the constitutional claim (see, for example, Murphy v Roche

[1987] IR 106, Brady v Donegal County Council [1989] ILRM 282). In the event, it appears that the Applicant did not raise the

matter of the constitutionality of Section 260 until 6th July 2000, the day on which O’Sullivan J. delivered his reserved

judgment. The learned trial judge was not willing to deal in any substantive way with the constitutional question at that point.

However, as has been set out earlier in this judgment, in his order of 18th July 2000 he ordered that the Applicant be at liberty

to amend his pleadings to include a challenge to the constitutionality of Section 260 of the Mental Treatment Act 1945. In his

amended order of 27th November the learned trial judge provided as follows:

“It is ordered that notwithstanding the long vacation the Applicant be at liberty to serve amended pleadings to include a

challenge to the validity of Section 260 of the Mental Treatment Act 1945 (as amended) having regard to the provisions

of the Constitution of Ireland, on the Respondent and on the Notice Party..”

I have earlier referred to the submissions made by senior counsel for the Attorney General, Mr McGuinness in regard to this

aspect of the Applicant’s appeal. In a large part I would accept these submissions. In Mr Blehein’s earlier proceedings (Blehein v

Murphy and Ors [2000] 2 IR 231 it was held by this Court that it was only in exceptional circumstances that the Plaintiff might

amend a notice of appeal so as to argue a ground not argued in the High Court and that such circumstances did not exist in

that case. The present proceedings are based on the same factual background and it is clear that the “exceptional

circumstances” referred to in the earlier decision of this Court are not present in this case either. The Applicant’s challenge to

the constitutionality of the section, therefore, must firstly be fully argued in the High Court.

With regard to the question of locus standi, if the Applicant’s substantive appeal is dismissed in this Court he will have been

refused leave, under the terms of Section 260, to bring proceedings against the Respondent hospital. In his previous

proceedings he has been refused leave to bring proceedings against the relevant medical practitioners and others. He is

therefore a person whose prima facie right of access to the Courts has been affected by the operation of the section and is in

a position to argue that he has locus standi to maintain his constitutional proceedings.

The learned trial judge has recognised this position by permitting him to amend his present proceedings to this end. I have no

doubt that in so doing the learned trial judge was endeavouring to extend the normal assistance given by the Court to a lay

litigant. However, I would accept Mr McGuinness’s submission that to amend an application for leave under Section 260 to

include a constitutional challenge is not a satisfactory form of procedure. The situation has also changed in that Mr Blehein has

now abandoned his claim in regard to the status of the Respondent hospital so that his proceedings against that hospital are

now at an end.

The wording of Section 260(1) - “no civil proceedings shall be instituted in respect of an act purporting to have been done in

pursuance of this Act, save by leave of the High Court, and such leave shall not be granted unless the High Court is satisfied

that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in

bad faith or without reasonable care” - do not on their face apply to a challenge to the constitutionality of the section. In my

view the Applicant does not require leave to initiate such proceedings. His present leave proceedings will now be finally decided

by this Court. His correct course would be to commence new proceedings by plenary summons in order to challenge the

constitutionality of the section. Whether he embarks upon this course is, of course, for him to decide.

In summary, therefore, I believe that the learned High Court judge was correct in his decision that the Applicant had no

substantial grounds for contending that the Defendant hospital acted in bad faith or without reasonable care. I would therefore

dismiss the appeal.