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Blehein v. St. John of God Hospital [2000] IEHC 133 (6th July, 2000)

THE HIGH COURT

1999 No. 73IA

BETWEEN

LOUIS BLEHEIN

PLAINTIFF

AND

ST JOHN OF GOD HOSPITAL (STILLORGAN, COUNTY DUBLIN)

DEFENDANT

JUDGMENT of O'Sullivan J. delivered the 6th day of July, 2000.

The Plaintiff seeks leave of the Court pursuant to Section 260(1) of the Mental Treatment Act, 1945 as amended (hereinafter "the 1945 Act") to bring these proceedings against the Defendant hospital in connection with the exercise by it of its powers and duties under the 1945 Act.

Section 260(1) where relevant provides

"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."

1. This section has been judicially considered in a number of cases, pre-eminently by the Supreme Court in Murphy -v- Greene [1991]: ILRM: 404 which in turn considered the decision of the same Court in O'Dowd -v- North Western Health Board [1983]: ILRM: 186. In the earlier case O'Higgins C.J. had said

"I think the section does no more than to require the Applicant for leave to sue to discharge the same onus of proof as he would be required to discharge in pursuing a claim for damages for a tort outside the Act but to discharge it at an earlier point in time."

2. In the later case, Finlay C.J. said

"Upon the facts proved as a matter of probability to the Court under the section, however, it is necessary for the Court to apply the test as to whether they constitute substantial grounds for contending either a want of good faith or a want of reasonable care. I am satisfied that the use of the phrase 'substantial grounds' in this context, notwithstanding the constitutional interpretation which I have indicated as being appropriate for the construction, would mean something more than probable or prima facie grounds. Having regard to the fact that what the grounds must exist for is the making of a contention of a want of good faith or want of reasonable care, it is not, of course, necessary for the Court to try and conclude at this stage of a Section 260 application whether the Plaintiff is, as a matter of probability, likely to succeed in his action."

3. O'Flaherty J. in the later case said

"But even if the Applicant establishes that he has a stateable case that is not enough. He has to satisfy the Court that he has substantial grounds for contending as a matter of probability that there was bad faith or a lack of reasonable care. The test is not that he can contend (or assert) that he has substantial grounds but that the 'substantial grounds' which will help him to prove his case ultimately do exist in fact. I would equate 'substantial grounds' with potentially credible evidence which will help him establish his case of bad faith or a want of reasonable care on the doctor's part. It is not necessary that the evidence should be so compelling as to make it certain (because that is it set too high a standard) that he will establish his case but the evidence must be there and must be demonstrated to be there to a credible extent before he should be permitted to bring his proceedings.

Proof of a mis-diagnosis in this type of case above others is not proof of want of care; neither is a failure to check or double check the question of who it was that referred the patient for examination. Neither is it necessary to obtain a second opinion."

4. From the foregoing it seems that the High Court will be satisfied that there are substantial grounds under the sub-section if credible evidence is presented to it which - if accepted at a full hearing - could reasonably support a case of either bad faith or lack of reasonable care on the part of the prosposed Defendant

Background

5. The Plaintiff says he was detained against his will on foot of orders made by or on behalf of the Defendant for three separate periods in 1984, 1987 and 1991 respectively. The Plaintiff claims a number of declarations to the effect that in making the orders in question and in detaining and subjecting him to treatment while in detention the Defendant has acted in breach of the rules of natural justice (and in particular the rule of audi alteram partem ), has violated several of his constitutional rights and he claims damages and interest thereon.

6. The Plaintiff has already brought a different set of proceedings arising out of the same episodes against different Defendants namely the certifying doctor, his wife and a member of An Garda Siochana who was present when he was detained. These proceedings were struck out because leave of the High Court pursuant to Section 260(1) had not been procured.

7. The Plaintiff has made a number of submissions which I will now deal with in turn.

1) He submits that no application was made for an order under Section 185 of the Act of 1945 and that accordingly no order, or no valid order, thereunder was made and that his subsequent detention and treatment was therefore invalid.

8. To understand this submission it is necessary to cite the relevant portions of Section 185 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..."

Section 5 of the Mental Treatment Act, 1953 also has a bearing and where relevant provides as follow

"(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 -

(b) in the case of an application under Section 185 of the principal act

(ii) where the examinations to which the relevant medical certificate relates were made on different dates, the earlier of those dates."

9. As can be seen from the foregoing, therefore, Section 185(1) provides for the making of an application for an order in the terms set out where it is desired to have a person received and detained in an approved institution. The submission that no application or request was made for such an order is founded upon the wording of standard form no. 7 the relevant portion of which provides at paragraph 6

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

10. The Applicant's point is that what is sought here is the reception of the named person as distinct from an order to have such person received and detained.

11. In response Mr Fitzgerald S.C. points to the description of the document at its head which includes the following

"Application, certificate and order for the reception and detention of a person as a temporary patient..."

12. Form no. 7 is divided into three parts, part 3 of which is entitled "Order for Reception and Detention". It provides at paragraph 1.0 thereof for the making of an order by the officer of the relevant institution. Part 1 is described as an application and part 2 provides for the certificate of two registered practitioners.

13. I am unable to agree with the Applicant that form 7 is not an application for the relevant order. The form describes itself as comprising an application, a certificate and an order and in my view part 1 comprises an application for an order which is set out in part 3. The certificate is contained in part 2. Notwithstanding the absence of the word "order" in paragraph 6 of part 1, in my opinion part 1 comprises an application for the order which is provided for by part 3. I would hold that that Applicant does not have a substantial ground under this heading.

2) With regard to the first in time of the periods of detention, namely from the 26th February, 1984 to the 16th May, 1984 the Applicant says that the order was not made within seven days of the relevant medical examination and therefore was ultra vires .

14. As I have already indicated part 2 of form no. 7 provides for the certificate of two registered medical practitioners. In the 1984 form the order is made (as set out in part 3) on the 26th February, 1984. Part 2 sets out the two certificates. The second is dated the 25th February and is clearly within seven days of the making of the order on the following day.

15. The first of these certificates sets out four separate dates for examination of the relevant person as being the 13th February for four hours, the 14th February for two hours, the 16th February for two and a half hours and the 25th February for three hours.

16. It will be recalled that Section 5(2) of the Mental Treatment Act, 1953 specifies that "the date of the examination" in present circumstances means

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

17. The Plaintiff submits that there were a number of examinations by the first certifying doctor (Dr Murphy) and that the earlier of those dates (namely the 13th February, 1984) is the appropriate one and is clearly more than seven days before the 26th February; accordingly the order made in reliance on such certificate is invalid.

18. Mr Fox, B.L. on behalf of the Defendant submitted that the true interpretation of Section 5(2)(b)(ii) of the Mental Treatment Act, 1953 is that "the earlier" of the dates referred to is “the earlier” as between the two certifying doctors rather than “the earliest”of a number of occasions on which one of those two doctors may have attended on the subject of the application. He further submits that in the case of Dr Murphy there was one examination which extended over four different dates and that the date of that examination is the last of those four different dates namely the date on which this examination concluded.

19. It seems to me that the use of the phrase "the earlier" indicates a comparison between two dates as distinct from more than two dates. I consider that the relevant sub section is dealing with the different dates of the examinations conducted by the two certifying doctors as distinct from the different dates on which one of those two different doctors may have attended upon the subject of the application. The question then arises as to what is the correct date of the examination of Dr Murphy where he has indicated four different dates in the box headed "date of examination of person"?

20. It seems to me clear that the intention of the legislature is to ensure that the relevant examination is an up to date examination; i.e. that is has been conducted not earlier than seven days before the order is made. Where form no. 7 shows a number of dates under the heading "date of examination of person" one of which dates is clearly within seven days then it seems to me that the requirements of Section 5 have been satisfied. If Mr Fox is correct then there has been only one examination ending on the last of the dates (it could not end sooner). If so, clearly the order was made within seven days. Even if he is not correct and if it is arguable that there were four separate examinations it is clear that the last of these was made within seven days. Could it be that the existence of earlier examinations could somehow alter the validity of the most recent in time? In my opinion not. If that were the case a person's ordinary general practitioner would be excluded which makes no sense.

21. I am not satisfied, therefore, that the Plaintiff has advanced substantial grounds to support this argument.

3) The third submission made by the Plaintiff was that there is no power under the relevant statutes providing for the Gardai to accompany a person authorised to receive and detain him as occurred in the present case. He further submits that there was a "done deal" between the certifying doctors, the Gardai and the Defendant who was represented by Brother James Davis a psychiatric nurse in the Defendant hospital on the occasion of his detention.

Section 5(1)(b)(i) of the Mental Treatment Act, 1953 where relevant provides as follows

"... 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, ...".

22. The persons mentioned in sub - section 4 include the person in charge of the approved institution in which it is desired to have the detainee received and detained and his officers, assistants and servants and any medical officer of such institution.

23. Whilst it is true that there is no provision authorising the Gardai to receive and take charge of the person to whom the application relates I do not agree that the presence of a member of the Gardai on the occasion that authorised persons attend to "receive and take charge" of such person renders their activity illegal or deprives it of authority.

24. Furthermore, the Applicant has submitted that there was a "done deal" between the various individuals attending to receive him and take him in charge. The mere fact that they obviously co-operated with each other does not mean in my view, that they acted without statutory authority. Once there is an application then under the statutory provisions the persons authorised may receive and take charge of the person to whom the application relates for a period of up to twelve hours even before the making of the order. I do not consider that the Plaintiff has substantial grounds under this heading.

4) The Plaintiff has submitted that he could not be detained for any longer than twelve hours prior to the making of the order and he submits that the order was made outside this period. I am not satisfied, however, on the evidence before me that this factual situation has been established. It is accepted that his preliminary detention, so to speak, can not exceed twelve hours but the evidence does not establish that the order was made outside of this period.

5) A further point made by the Plaintiff related to his claim that the Gardai interfered with detectives which he the Plaintiff employed to establish that his wife had been unfaithful to him. He has been certified by registered practitioners as suffering from the delusion that his wife has been unfaithful to him with some six different men. The Plaintiff submits that the basis upon which these certificates were made was that there was no proof that she had been unfaithful as claimed and he further submits that the Gardai have frustrated his attempts to get such proof and that accordingly the medical certificates are invalid with the result that the consequential orders were also invalid.

25. By way of general response to a number of the points advanced by the Plaintiff Mr Fitzgerald S.C. has submitted that this particular Defendant is not obliged to go behind the certificate. Once the certificate appears in order then there is no obligation on the receiving hospital to carry out researches into what particular matters were taken into consideration by the certifying medical practitioners. 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.

26. I would add, however, that it does not necessarily follow at all, in my view, that the opinion of the medical practitioners was based upon the absence of evidence of lack of fidelity.

6) A further submission was made by the Plaintiff to the effect that he was released from the premises of this Defendant on a conditional or "trial" basis only. This he found humiliating. This submission relates to the fact that he was released on the basis that he would continue to take particular drugs or have regular injections. There is no evidence before me that such treatment of the Plaintiff was inappropriate in any way and I do not consider that substantial grounds have been made out under this heading.

7) A further submission was made to the effect that letters written by Dr Murphy in or about the time that he gave his certificate under form no. 7 show that he had his mind made up with regard to the mental state of the Plaintiff in advance of examining him.

27. This submission is really an attack on Dr Murphy and does not, in my view, constitute any grounds let alone substantial grounds against this Defendant.

8) A further general submission was made to the effect that the procedure adopted in receiving and taking charge of the Plaintiff was in violation of his constitutional rights to fair procedures and in particular of his right to have notice of the intended detention and 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.

28. 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 implied 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. I note that on at least one occasion following his detention the applicant was given access to his own doctor and indeed lawyers and it may well be that such access is a constitutional imperative. Whilst of course detention of any citizen against his or her will is a significant interference with a constitutionally protected right, I do not see that the operation of Section 185 must be preceded the service of notice and the giving of an opportunity to be heard and present evidence as claimed by the Plaintiff.

9) A final point made by the Plaintiff relates to the status of the Defendant hospital.

29. The Plaintiff submits that under Section 159(1) of the Act of 1945 it is provided that

"No person shall be received as a temporary patient in an institution or premises unless the institution or premises is or are approved under this part of this Act for the reception of temporary patients."

30. He points out that under Section 158(1) the Minister may by order approve any institution for such purpose. In his grounding affidavit the Applicant avers

"The Respondent hospital is not, and was not at the material time in 1991, designated by law as a place of detention."

31. In reply on behalf of the Defendant Ray Leonard at paragraph 9 of his affidavit says

"I also say and believe that it is incorrect to say that the St John of God Hospital is not designated by law as a place of detention. I say that the St John of God Hospital in Stillorgan has been registered as a private institution under the Mental Treatment Act of 1945 for in excess of fifty years. I simply do not understand how it is contended by the Applicant that the Respondent hospital is not designated as an institution under the Mental Health Act of 1945."

32. The Applicant says that this averment misses the point. Registration as a private institution occurs under Part X of the Act of 1945. Approval by ministerial order of an institution for the reception of persons as temporary patients or voluntary patients under Part XIII is not, he submits, necessarily included in registration as a private institution. At paragraph (c) of the prayer of his intended statement of claim the Plaintiff claims a declaration that the Defendants detained the Plaintiff in a premises that was not designated by law as a place of detention.

33. In the course of concluding submissions Mr Fitzgerald S.C. requested an opportunity to produce a further affidavit exhibiting an appropriate order of the Minister and I indicated that I would be disposed to allowing this to occur.

34. With the exception, therefore, of the point in relation to the status of the Defendant my view is that the Plaintiff has not established substantial grounds for contending that the Defendant acted either in bad faith or without reasonable care and I would refuse him leave to bring the intended proceedings. For the present, however, the matter should be adjourned and no final order will be made.