High Court of Ireland Decisions

1. He claims that the two doctors fraudulently certified him as part of a conspiracy with his wife.

2. He claims that his wife knowingly arranged for and procured his being conveyed to and detained in St. John of God's Hospital unlawfully and unconstitutionally. As against two of the proposed Garda Defendants the claim is that they unlawfully and unconstitutionally took the Applicant into detention before the doctors signed the certificates and that, at any rate, they escorted the Applicant to hospital without lawful authority. The third Garda is joined for technical reasons which in the event are no longer relevant.

3. A draft plenary summons has been exhibited and from the general endorsement of claim it is possible to discern the following alleged causes of action:-

4. It is to be noted that "negligence" is not included.

5. As I indicated at the end of the hearing, the Applicant is to be complemented on the competent and courteous way in which he presented his case. But I am satisfied that leave must be refused.

6. It is clear from the judgment of Finlay C.J. in Murphy -v- Greene that the onus of proof on the Applicant goes beyond merely establishing a prima facie case. This Court has to look not just to the evidence adduced on behalf of the Applicant but the evidence to be adduced on behalf of the Defendants also. No notices of intention to cross examine were served by any party. I must therefore decide the preliminary question of whether there are substantial grounds for contending that all or any of the proposed Defendants acted in bad faith or without reasonable care.

7. I am absolutely satisfied on the evidence before me that there was no mala fides on anybody's part.

8. What appears to have happened was that the Applicant went to the proposed First named Defendant, Dr. Murphy, who is the family G.P., and claimed that her life was unbearable because of an alleged obsession on the part of the Applicant that she was having affairs with other men. Dr. Murphy knew all about the Applicant. He had been involved in the Applicant having become an in-patient in St. John of God's Hospital in 1984. It does seem likely that Dr. Murphy formed a preliminary view at least that the Applicant would probably have to be certified to return to St. John of God's Hospital. On behalf of Mrs. Blehein, Dr. Murphy arranged for a Garda escort. This was permissible under Section 5 of the Mental Treatment Act, 1953. There was nothing unnatural about any of this and no inference could be drawn that Dr. Murphy had pre-judged the Applicant before any examination of him was made. Knowing that two doctors would be required for certification, Dr. Murphy sent his records to Dr. Kennedy, the proposed Second named Defendant. I see nothing wrong with that either.

9. There is dispute between the Applicant and the doctors as to what happened when the doctors arrived at the house. The Applicant claims that there was no examination or certainly no proper examination of him. Dr. Kennedy says that she has no precise memory of the events at this remove but says that she would never have signed the certificate without personally examining the Applicant. Dr. Murphy says that Dr. Kennedy went to the bedroom, conducted an interview with the Applicant and confirmed that, in her view, he was suffering from delusions.

10. Having regard to all the surrounding circumstances and irrespective of whether Dr. Murphy himself carried out any major examination of the Applicant, it is quite clear that the Applicant has not established bad faith on their part. I am further of opinion that the Applicant has not discharged the onus of proof of establishing, as a matter of probability, that either doctor acted without reasonable care.

11. There is no evidence before me from which I could be satisfied that Mrs. Blehein or any of the proposed Garda Defendants acted in bad faith or without reasonable care. Mrs. Blehein cannot be expected to know all the ins-and-outs of the certification procedure. The guards were there on request as escorts. I do not accept that even on the Applicant's own version of events the guards took the Applicant into detention before the certificate was signed or, at the very least, I am not satisfied that that has been proved to me as a matter of probability.

12. Section 260 provides that leave shall not be granted unless either of the two preconditions exist. This seems to suggest that even if one of the conditions did exist, this Court still has to decide if it grants leave. Normally, it would do so because the Section is a limitation on the constitutional right of access to the Courts. But if, as in this case, the proposed action is clearly statute barred and where it is clearly indicated as it has been by all the proposed Defendants that the statute would be pleaded, I think that it would be appropriate and not against the constitution for the Court to refuse leave. If, therefore, I am wrong in the view I have taken about the two alternative preconditions, I would still refuse leave on the grounds of statute bar.

13. It is not necessary for me to consider other possible grounds of refusal such as the multiplicity and duplication of actions and the absence of any evidence to support any of the proposed causes of action apart from false imprisonment. I, therefore, refuse leave.