Supreme Court of Ireland Decisions

1. This is an appeal from a judgment and order of the High Court (Geoghegan J.) in which he refused an application by the plaintiff under s. 260 of the Mental Treatment Act, 1945 (hereafter “the 1945 Act”) for leave to institute proceedings against two doctors, his wife and three members of the Garda Síochána in respect of his being taken against his will to St. John of God Hospital, Stillorgan, Dublin in 1987.

2. The factual background to the case, in so far as it is not in dispute, is as follows. The plaintiff was at the material times a secondary school teacher in Portumna,

3. Co. Galway. He is married to the third named defendant, but has been separated from her for some years. The first and second named defendants are doctors who were in practice at the relevant times in Portumna and the fourth, fifth and sixth named defendants are members of the Garda Síochána.

4. The plaintiff has been admitted to St. John of God Hospital, Stillorgan, on three occasions, from 25th February 1984 to 16th May 1984, from 29th January 1987 to 16th April 1987 and from 17th January 1991 to 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 plaintiff was suffering from paranoid delusions concerning his wife’s fidelity and similar diagnoses were reached by two general practitioners, Dr. Sean G. Murphy and Dr. Fionnula Kennedy. It appears that the plaintiff obtained the leave of the High Court to institute proceedings against the two last named doctors, but that he is no longer represented by the solicitors who acted for him in those proceedings and they do not appear to have gone beyond the stage of the issuing of a plenary summons. The proceedings which the plaintiff now wishes to institute relate solely to the bringing of the plaintiff to St. John of God Hospital on the 29th January 1987 and his subsequent detention in the hospital.

5. The draft plenary summons which the plaintiff seeks leave to issue claims declarations that

6. In addition, the plaintiff claims damages, costs and interest.

7. It is not in dispute that on the 29th January 1987, an application for the reception and detention of the plaintiff as a temporary patient (private) in St. John of God Hospital was made by the third named defendant (hereafter “Mrs. Blehein”) and that annexed to the application was a certificate by two registered medical practitioners,

8. Dr. Murphy and Dr. Kennedy, in which they declared that the plaintiff was suffering from mental illness and required for his recovery not more than six months suitable treatment and was unfit on account of his mental state for treatment as a voluntary patient. It is further not in dispute that, on the day in question, Dr. Murphy and Dr. Kennedy were present in the house of the plaintiff and that there were also present a psychiatric nurse, Brother James Davis, from St. John of God Hospital, the plaintiff’s brother, Brendan, and Garda Thomas O’Connor. Another garda, Garda Desmond Nolan, remained in a car outside the house. The plaintiff was then driven from his house to St. John of God Hospital by his brother in his car and was accompanied on the journey by Brother Davis and the two gardaí.

9. The plaintiff, who conducted the case in person in the High Court and again in this court, contends that the actions of the defendants were not only unlawful and in breach of the relevant Acts of the Oireachtas but were vitiated by bad faith. As the learned High Court judge pointed out, he is not alleging any want of reasonable care: his case is that he was the victim of a deliberate conspiracy to deprive him of his liberty.

10. The application in the High Court was heard on affidavit only and there was some conflict of evidence as to what transpired on the 29th January. The plaintiff says that he queried the authority of the gardaí to arrest him on that occasion and that he was assured by the fifth named defendant that there was a form signed by two medical practitioners in Portumna Garda Station which provided the statutory authority for his arrest. The plaintiff says that he asked if he could see the form or if he, the fifth named defendant, would read it to him, but that the fifth named defendant replied: “it is below in the barracks”. The fifth named defendant in his affidavit said that, on the occasion in question, he had in his possession a written request by Dr. Murphy to provide a garda escort, that he informed the plaintiff of the existence of the written request, but that he did not say to him that it was “below in the barracks”.

11. The acts purporting to have been done under the 1945 Act in respect of which the plaintiff claims the relevant defendant or defendants were acting in bad faith are as follows:

12. It is also to be borne in mind that where, as here, the detention of a person as an involuntary patient takes place against a background of marital discord, a considerable degree of care is to be expected on the part of those concerned in operating the legislation: see the decision of this court in Bailey .v. Gallagher [1996] 2 ILRM 433.

13. Applying those criteria to the admitted facts of the present case, I am satisfied that the learned High Court judge was correct in holding that the plaintiff had failed to establish “substantial grounds” within the meaning of s. 260 of the 1945 Act for the contention advanced by him that the acts purportedly done by the relevant defendants pursuant to the 1945 Act were done in bad faith. The uncontroverted evidence is that the plaintiff has unfortunately been suffering from a serious form of delusional mental illness for many years and, as a result, has undergone lengthy periods of treatment in the St. John of God Hospital. There is no evidence in the affidavits in these proceedings to justify the assertion made by him that the actions of Mrs. Blehein, Dr. Murphy and Dr. Kennedy were motivated by anything but concern arising from the plaintiff’s medical condition and the necessity to have it professionally treated in an appropriate institution.

14. In addition to the complaints against Dr. Murphy and Dr. Kennedy based on defamation, fraud and conspiracy, the plaintiff, in the case of Dr. Murphy, made a specific allegation of non-compliance with the requirements of the 1945 Act.

15. In an affidavit sworn by him in the High Court, Dr. Murphy said:

16. In a further affidavit, at para. 15 he said that:

17. In the present case, Dr. Murphy had not carried out an examination of the plaintiff within the period of seven days before the 29th January. The plaintiff contends that, having regard to the nature of the relevant illness, it would have been essential for Dr. Murphy to have conducted a conversation with him for at least some time before he could safely arrive at a diagnosis that he was suffering from the mental illness in question. He argued, accordingly, that the requirements of the section were not met by Dr. Murphy having had him under observation, as it were, during the course of his visit to the house on the 29th January.

18. There is undoubtedly substance in that contention. It is difficult to see how the requirements of the Act could have been met other than by Dr. Murphy having had a conversation of at least some length with the plaintiff within the seven days preceding the signing of the certificate. However, s. 26 requires that there be more than a failure to comply with the requirements of the Act; there must also be bad faith or an absence of reasonable care on the part of the proposed defendant. I am satisfied that the plaintiff has not established that there was any bad faith on Dr. Murphy’s part in not conducting a further examination, in the form of an interview, with the plaintiff on the occasion in question. Dr. Murphy was fully acquainted with the plaintiff’s previous medical history and was of the view having regard to what he had been told by Mrs. Blehein, that he was in need of treatment in an appropriate institution. It was with that in mind that he arranged for an examination of the plaintiff by another doctor. He may

19. As to the fourth, fifth and sixth named defendants, the claim was made against them that the requirements of s. 183 of the 1945 Act - providing for the arrangement of a garda escort to ensure the safe conveyance of a person the subject of a private patient reception order had not been met. However, it is clear that the provisions of that section have no application to the conveyance to a particular institution of a person the subject of a temporary private patient reception order, as was the case here. There was in any event no evidence of any bad faith or want of reasonable care on the part of any of the defendants concerned.

20. The learned High Court judge, although clearly satisfied that the plaintiff had not established substantial grounds for contending that any of the actions complained of

21. It could be said that, in theory at least, that is not a ground for refusing leave, since it might be that a defendant would prefer, if leave were granted, to contest the action on the merits and not plead the statute of limitations. As against that, it could be argued that the fact that there is an absolute defence available to a defendant because of the lapse of time is a ground on which the court should be entitled to refuse leave for the proceedings to be brought. However, since it is clear that, for the reasons already given, the plaintiff has not established substantial grounds in support of his contention that the defendants or any of them, in acting under the provisions of the 1945 Act, did so either in bad faith or without reasonable care, I do not think it is necessary to express any concluded view on that matter.

22. I would dismiss the appeal and affirm the order of the High Court.

23. The above named Louis Blehein (the Applicant) wishes to institute plenary proceedings against the above named intended Defendants, namely, Sean G Murphy and Fionnuala Kennedy, both whom are doctors, Patricia Blehein (Mrs Blehein), who is the wife of the Applicant, and the other above named intended Defendants each of whom is a member of the Garda Síochána. A draft of the Plenary Summons which the Applicant wishes to serve has been referred to in the affidavit of the Applicant sworn on the 2nd day of November, 1998. From the draft summons it appears that the Applicant claims that the two doctors fraudulently certified him as suffering from mental illness as part of a conspiracy with Mrs Blehein and further that Mrs Blehein knowingly arranged for and procured that he be conveyed to and detained in St John of God’s Hospital in a manner which was unlawful and unconstitutional. As against two of the proposed Garda Defendants the claim is that they unlawfully and unconstitutionally arrested the Applicant or at any rate escorted him to St John of God’s Hospital without lawful authority. The third member of the Gardaí was joined for procedural reasons. As the acts or events of which the Applicant complains were done or purported to have been done in pursuance of the Mental Treatment Act, 1945, the proceedings cannot be instituted save by leave of the High Court granted in pursuance of s.260 of the Act of 1945. An application for such leave was made to Mr Justice Geoghegan and refused by him for the reasons set out in a judgment delivered on the 2nd day of July, 1999. It is from that judgment and the order made pursuant thereto that the Applicant appeals to this Court.

24. The Mental Treatment Act, 1945, s.260 imposes a restriction on the constitutional right of citizens to have access to the Courts in terms and to the extent which are set out in that section, namely:

25. One or more affidavits were sworn by each of the parties to the intended action but none of the deponents was cross-examined on his or her affidavit. Accordingly, it was on the basis of the evidence disclosed by those affidavits and the exhibits contained therein that the learned trial Judge was required to decided the preliminary question of whether the Court was

26. The Applicant is aged about 60 years. He was at all times a much respected teacher in Portumna Community School, Portumna in the County of Galway. He was married to Mrs Blehein more than 30 years ago. There are five children of the marriage all of whom apparently graduated and are independent of the Applicant. Arising out of proceedings instituted by Mrs Blehein under the Judicial Separation and Family Law Reform Act, 1989, the Applicant and Mrs Blehein are now living separate and apart. Again, it is common case that the Applicant was diagnosed by the above named Doctor Sean G Murphy as a paranoid schizophrenic in 1984. He was admitted to and treated in St John of God’s Hospital, Stillorgan in the County of Dublin for that condition for three periods, namely, 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. It was the opinion not only of Dr Murphy but also of the Consultant Psychiatrists in St John of God’s Hospital that the Applicant suffered serious delusions about his wife’s fidelity. The Applicant was provided during his stay in hospital and subsequently with drugs to ameliorate that condition. It is common case that the Applicant decided, contrary to medical advice, to discontinue the use of such drugs. The Applicant denies that he suffers from any mental illness and certainly there is no doubt but that he has discharged his functions as a teacher and certain farming interests with ability and dedication. Indeed it was clear in this Court, as Mr Justice Geoghegan had observed in the High Court, that the Applicant presented his case with a high degree of courtesy and competence.

27. There is a dispute between the intended parties in relation to the events which occurred on the 29th day of January, 1987 and the motivation of the persons involved in those events. On that date Mrs Blehein signed an application form pursuant to section 185 of the Act of 1945 to have the Applicant received as a temporary and private patient in St John of God’s and that application was accompanied by a certificate from Drs Murphy and Kennedy bearing the same date and an order for reception and detention signed by the Chief Medical Officer of the Hospital on the 30th January, 1987. Drs Murphy and Kennedy declared as part of their Certificate that they separately examined the Applicant and each of them was of the opinion that he was suffering from mental illness and required for his recovery not more than six months suitable treatment as a voluntary patient.

28. The Applicant’s account of the events of the 29th January, 1987, is set out in the various affidavits sworn by him herein in which he explains that on that date four men entered his dwelling house by a side door, namely, a Brother James Davis of the Order of St John of God’s, his own brother Brendan Blehein and two members of the Gardaí, namely, the above named Thomas O’Connor and Desmond Nolan. It was the contention of the Applicant that those two Gardaí arrested him and took him into custody pursuant to a medical certificate bearing the date of the 19th January, 1987, given by Dr Murphy. What Mr Blehein says is that subsequent to his arrest by the Gardaí the two doctors arrived at his dwelling house and they did sign a certificate on that date but it is his evidence that neither of them examined him on that date or at any other material time. Again he agrees that Mrs Blehein did sign the application form but he contends that she acted wrongfully and unlawfully in as much as that it was she who had him arrested at his dwelling house prior to the arrival of the two medical practitioners.

29. In his affidavit Dr Murphy explained that the medical certificate bearing the date of the 19th January, 1987, was in fact given subsequent to the 29th January, 1987, and back dated to the earlier date to explain the Applicant’s absence from employment for the week commencing the 19th January due to mental illness. As to the presence of the Gardaí the Applicant’s house on the 29th January 1987, Dr Murphy explained that he had informed the Gardaí about one week before the 29th January that he would be requesting a garda escort to assist in taking the Applicant to St John of God’s Hospital. He made that arrangement because, he said, the Applicant had reacted violently prior to his admission to that hospital in 1984 and on that occasion the Applicant had assaulted Mrs Blehein in the family home striking her on the head with his fist and kneeing her in the abdomen. In his affidavit Garda Thomas O’Connor emphatically denied that the Applicant was arrested by the Gardaí. He explained in his affidavit that he and Garda Nolan were present as a result of a request in writing from Dr Murphy to escort the Applicant to St John of God’s Hospital. Again, Garda O’Connor denies that he or his colleague were acting in pursuance of any medical certificate from Dr Murphy but merely in pursuance of a written request to provide escort services. What Garda O’Connor agreed was that he did keep the Applicant under supervision while he was packing his clothes. The garda went on to say that he and his colleague “acted in the most appropriate, humane and discreet manner” that they carried out their duties “as speedily and as humanely as possible” . Again there is the recollection of Garda O’Connor - and he recognised that a long time had elapsed since the incident had occurred - that he entered through the hall door and in fact that the medical practitioners were present before his arrival. The account of Garda O’Connor was supported in substance by the affidavit sworn by Garda Nolan.

30. Dr Murphy’s evidence in relation to his examination (if any) of the Applicant on that date is limited. He merely states that “following my observations of the Plaintiff (Applicant) I was of the professional opinion that I had no option but to refer the Plaintiff (Applicant) back to St John of God Hospital” .

31. On the other hand Dr Murphy made that comment in the context that he was familiar with the medical history of the Applicant; had had a number of consultations and conferences with Mrs Blehein and had, as he said, about five telephone conversations concerning the Applicant with his elder brother Brendan Blehein.

32. Dr Fionnuala Kennedy explained that her memory of the events of the 29th January 1987 were vague, understandably, having regard to the twelve years which had elapsed from that date to the swearing of her affidavit herein. She did, however, recall taking to Mrs Blehein and to the Applicant’s brother Brendan prior to meeting the Applicant in his bedroom. She expressly stated that the purpose of her conversation with the Applicant was to obtain his immediate prior history. Again, she stated that she would not have signed the committal form without talking to the Applicant before hand. The purpose of her questions were, she explained, to satisfy herself that the Applicant was in need of psychiatric treatment.

33. Dr Kennedy had been provided prior to the 29th January, 1987, with correspondence from St John of God’s Hospital in relation to the alleged mental illness of the Applicant. She summarised her position by saying that the committal form was signed by her only following:

34. In fact, the affidavit of the Applicant confirms the recollection of Dr Kennedy to the extent that he agrees that some conversation took place between that Doctor and himself in his bedroom on the 29th of January, 1987, although he claims it was very brief indeed.

35. It is common case that neither doctor carried out any physical examination of the Applicant on the 29th January, 1987. Nobody suggests that such an examination would have been appropriate. Dr Murphy claims that he “observed” the Applicant and Dr Kennedy asserts that she “talked to” him. There was no independent evidence as to the type of examination which would be appropriate in diagnosing paranoid schizophrenia. I would infer that the issue as to whether or not a patient is suffering from particular delusions would require some information as to the beliefs of the patient and some knowledge of the objective reality. It would be difficult to see how a visual inspection could enable a doctor in ordinary circumstances to make a diagnosis of schizophrenia or how such an inspection could constitute an examination for the purposes of s. 184 (4) of the Act of 1945.

36. However, the proceedings which the Applicant wishes to institute are not based on an allegation that either of the doctors was negligent in the examination which they claimed or purported to have carried out. As Mr Justice Geoghegan pointed out, the detailed draft pleadings noticeably omit any allegation of negligence. That omission is entirely consistent with the Applicant’s claim. It is his contention that he was arrested, detained and imprisoned as a result of a conspiracy between all six of the intended Defendants to deprive him of his property; his good name and his personal liberty. The allegations as to absence of inadequacies in the medical examinations which did take place are put forward in conjunction with the other facts of which he has given evidence - and the interpretation he seeks to place on them - as evidence of that conspiracy.

37. If the Court accepted the confident recollection of the Applicant as to the events of the 29th January, 1987, in preference to the vaguer or clouded recollection of the intended Defendants of that distant date, could it be said that such evidence constituted substantial grounds for contending that the intended Defendants acted in bad faith as the Applicant alleges they did. In the circumstances of the case that question must be answered in the negative. The interpretation of the events on which the Applicant relies ignores the unhappy reality that apart from such examination as Drs Murphy and Kennedy may have carried out in January of 1987 the Applicant came under the care of Dr PJ Cullen, Consultant Psychiatrist, in St John of God’s in 1984 and another Consultant Psychiatrist, Dr Patrick Tubridy in 1988. Both of those doctors confirmed the diagnosis of the Applicant as schizophrenic and clearly they had ample opportunity to carry out all the appropriate tests necessary to make that diagnosis. Furthermore, each of the Consultants prescribed medication for the Applicant and urged his continued reliance thereon as an out patient. That evidence would convince me as much as

38. Furthermore, I might add, there is a degree of unreality about the application. Counsel on behalf of the intended Defendants informed the Court that it would be the intention of his clients to plead the Statute of Limitations if the Applicant was given liberty to take proceedings against any of them. It would be difficult to imagine a case in which such a plea would be more appropriate. The affidavits already sworn demonstrate the difficulty which the intended Defendants would have in seeking to match their honest recollection of events which took place on a day more than twelve years ago against that of the Applicant who understandably feels intensely about those events and the beliefs or allegations based on them. There is, too, the particular fact that the Applicant’s brother, Brendan, who was present on that critical date and to whom Dr Murphy claims to have spoken on several occasions prior to the 29th January, 1987 has since died. In the words of Henchy J in Sheehan .v. Almond [1982] IR 235 (at 239) the events in dispute have been:

39. It is entirely understandable that the Statute of Limitations should protect all defendants against litigation of that nature.

40. In the circumstances I would dismiss the appeal and affirm the order of Mr Justice Geoghegan.