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Cite as: [2001] IESC 73

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Blehein v. St. John of God [2001] IESC 73 (31st July, 2001)

THE SUPREME COURT

Denham J.

Murphy J. 329/00

Geoghegan J.

BETWEEN/

LOUIS BLEHEIN

APPLICANT/APPELLANT

and

ST. JOHN OF GOD HOSPITAL

RESPONDENT

and

THE ATTORNEY GENERAL

NOTICE PARTY

[Judgments from Denham and Murphy JJ, Geoghegan J concurring with both]

Judgment of Mrs. Justice Denham delivered on the 31st day of July 2001.

1. An Appeal

1. Louis Blehein, the applicant/appellant, hereinafter referred to as the applicant, has brought an appeal against judgments and orders of the High Court (O’Sullivan J.). Judgment was delivered in part on 6th day of July, 2000 and completed on 18th day of July, 2000. The orders were made on 18th day of July, 2000 and perfected on 21st day of August, 2000. They were adjusted by consent on 27th day of November, 2000 and the adjusted orders were perfected on the 7th day of December, 2000.

2. The applicant had sought the leave of the High Court pursuant to section 260(1) of the Mental Treatment Act, 1945, as amended, to bring proceedings against the respondent in connection with the exercise of its powers and duties under the Mental Treatment Act, 1945. The

applicant submitted that he was detained against his will on foot of orders made by or on behalf of the respondent for three separate periods in 1984, 1987 and 1991. The applicant claims declarations that the respondent acted in breach of natural justice and in breach of constitutional justice and he also claims damages.

3. In a judgment delivered on 6th July, 2000, the applicant’s submissions were treated under nine headings by the High Court. In relation to eight of the nine headings the High Court held that leave should not be granted to institute proceedings as the applicant had not established substantial grounds for contending that the respondent acted either in bad faith or without reasonable care. On the ninth ground the applicant had submitted that the respondent was not designated by law as a place of detention. The High Court granted an opportunity to the respondent to produce a further affidavit. The learned High Court judge held:

“With the exception, therefore, of the point in relation to the status of the [respondent] my view is that the [applicant] has not established substantial grounds for contending that the [respondent] 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.”

4. On 27th November, 2000 the applicant was given leave to institute proceedings against the respondent hospital challenging the lawfulness of his detention in 1984, 1987 and 1991 on the ground that, at the material times, the respondent hospital was not designated by law as a place of detention. The applicant was also given liberty to challenge the constitutionality of section 260 of the Mental Treatment Act, 1945, as amended.

2. Law

5. The applicant was before the High Court on foot of a motion under s. 260 (1) of the Mental Treatment Act, 1945 which states:

“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.”

3. Grounds of Appeal

6. The applicant has appealed against the judgments and orders of the High Court. The grounds of the appeal are:

“1. That the Learned High Court Judge did misdirect himself in law:-

(a) In acting in excess of jurisdiction by denying access to justice to the Applicant, the provisions of section 260 notwithstanding;

(b) In failing to apply a literal construction to the provisions of the Act in accordance with well established prescriptive ratio decidendi;

(d) In failing to apply the canons of construction of post-1937 legislation to the provisions of the Act;

(e) In holding that the Respondent was not obliged to look to the validity of the medical certificates in Form No. 7 of the Act prior to acting upon them;

(f) In holding that the principles of procedural justice guaranteed by the Constitution may validly be vitiated by a statutory provision;

(g) In holding that in this State the Legislature is Sovereign.

2. That the learned High Court Judge misdirected himself in law and in fact and upon the evidence and upon the weight of the evidence as follows:

(a) In holding, contrary to that which is patent, that Form No. 7 of the Act contains an application for an Order for detention;

(b) In holding that the inverted procedures, relating to the events of the 25th day of February 1984, described in the Affidavit of Kevin Blehein (at Exhibit “LB3” in the grounding Affidavit herein) constituted a lawful ‘examination’ for the purposes of section 185 of the Act;

(c) In holding that the Order in Form No. 7 dated the 26th February 1984 was made on that date, evidence to the contrary notwithstanding;

(d) In holding that the predetermination and wrong reasons disclosed by Dr. Murphy’s contemporaneous letters were not material to vitiating the accompanying certificates issued by him in Form No. 7 of the Act in 1984, in 1987 and in 1991;

(e) In holding that the Respondent was lawfully entitled to act upon invalid medical certificates;

(f) That, the provisions of the Constitution of Ireland notwithstanding, the condition of being suspected of a mental illness (if there is such) justifies a Kangaroo court;

(g) That there was evidence before his Lordship which warranted reversing the statutory and common law presumption of sanity;

(h) In holding that approval of an institution for the reception of patients pursuant to section 158 of the Act constitutes a sufficient designation of that institution as a place of detention for the purposes of Article 40.4.1 ° of the Constitution of Ireland;

(i) In declining to accept that marital disharmony, and the unlawful interference of the State police therein, was the only reason for the incarceration of the Applicant in the Respondent’s institution the uncontroverted evidence therein notwithstanding.

(j) In holding that the evidence herein did not constitute substantial grounds for contending that the Respondent acted without reasonable care or in bad faith.”

4. Application

7. On 25th June, 2001 the applicant’s appeal against the orders and judgment of the High Court (O’Sullivan J.) came on for hearing before the Supreme Court. There was no issue as to the constitutionality of s.260 of the Mental Treatment Act, 1945 before the Court. While leave has been granted by the High Court to the applicant to amend the plenary summons to include the challenge to the constitutionality of the section this has not yet been done.

8. At the commencement of the hearing the applicant requested that Murphy J. withdraw from the appeal. He submitted that Murphy J. was a judge in a previous case where he had exercised the same law against the applicant. He submitted that in this case the issue was the jurisdiction conferred by s. 260 of the Mental Treatment Act, 1945. He submitted that a judge who has previously exercised the same jurisdiction in the same manner could reasonably be expected to be predisposed to uphold the jurisdiction. He submitted that his appeal would commence with the argument that the High Court judge had exceeded his jurisdiction. He submitted that he would be arguing that s. 260 is not a jurisdiction which the court may exercise having regard to its primary function of administering justice, that to deny access to the court is to deny justice.

9. The applicant submitted that if a judge has operated s. 260 of the Mental Treatment Act, 1945 in the past he will operate it in the future. He argued that any judge who has operated the section should not sit. He argued that if a judge has given a judgment refusing leave to issue proceedings in any previous case where s.260 was challenged he or she would do the same again.

10. Counsel for the hospital, noting that Geoghegan J. had dealt with a previous application under s. 260 whilst a judge of the High Court and Murphy J. had heard a previous, different, application under s. 260 by the applicant, submitted that the matter should proceed before the court.

11. Counsel for the Attorney General informed the Court that he had been made a notice party after the judgment of O’Sullivan J. on 6th July, 2000. At a late stage the applicant had canvassed the unconstitutionality of s. 260. Pursuant to the order of the High Court the applicant has leave to amend the plenary summons. However, he has not yet instituted proceedings to make this amendment. Counsel submitted that applying logic to the applicant’s application it would mean that any Supreme Court Judge who had exercised an appellate function regarding s. 260 would have to withdraw. Similarly, any person who had acted as a High Court judge on any s. 260 application would also have to withdraw. Counsel for the Attorney General pointed out that the Attorney is involved in considerable litigation. It would be inconceivable that if he had suffered an adverse adjudication on a statute that a judge could not sit on a subsequent case relating to that statute. As to the particular situation counsel submitted that unless the Court considered that there had been participation such as ruled a judge out of sitting in this case the Court should allow the matter to proceed.

5. Decision

12. The procedure where a party asks a judge to disqualify himself was considered by the Chief Justice recently. In Rooney v. Minister for Agriculture [2001] 2 I.L.R.M. 37 at pp. 40-41 Keane C.J. stated:

The need to ensure the appearance, as well as the reality, of impartiality must be reconciled with the proper functioning of the judicial system. The dilemma to which these conflicting demands give rise might be resolved in cases of difficulty by the judge concerned referring the issue - perhaps on the basis of a memorandum prepared by him or her - to the senior available judge of the court of which he is a member. Such a course would be acceptable in cases of particular difficulty but I do not believe that this procedure should develop into common practice. The disclosure of possible grounds for concern and the sensible reaction of the parties, advised by their lawyers, has usually been sufficient to dispose of any such difficulty and I do not doubt this will continue to be the case.”

13. Murphy J. did explain to Mr. Blehein that he would adopt the procedure described by Keane C.J. as set out above in the present case and accordingly defer to my judgment as to whether he should recuse himself. The applicant moved this application referring to the issue of bias and the judiciary. There has been considerable case law on the matter in this jurisdiction in recent times: Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408; Bula Limited (In Receivership) and Ors. v. Tara Mines Ltd. and Ors. Supreme Court, Unreported, 3rd day of July, 2000; Rooney v. Minister for Agriculture [2001] 2 I.L.R.M. 37; O’Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419; O’Reilly v. Cassidy (No. 2) [1995] 1 I.L.R.M. 311; Orange Communications Ltd. v. Director of Telecommunications Regulation Supreme Court, 1999, No. 224, 18th May, 2000.

In Bula I stated:

“A judge has a duty to sit and hear a case. However, in certain circumstances it is appropriate that he or she disqualify himself or herself from a particular case. The test is not whether that judge believes he or she would be impartial. Nor is it whether the judge or judges on a motion to set aside such a judgment believes the judge was or would be impartial. Nor is it whether the parties consider the judge impartial. The test is objective. This has been analysed by the Constitutional Court of South Africa: The President of the Republic of South Africa and Ors. v. South African Rugby Football Union 1999 (7) BCLR 725 (CC) at p.49:

“ ... the correct approach to this application for the recusal of members of this court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the application must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

14. This test was set out for a recusal i.e. application prior to a hearing.”

15. The above is an appropriate test which I adopt. It is essential to the administration of justice

that there should be neither actual, subjective bias, nor what a reasonable person may perceive as bias i.e. objective bias. However, what is alleged here is not a bias against the applicant but a bias toward operating s. 260 of the Mental Treatment Act, 1945. The applicant has applied for the recusal of Murphy J. on the ground that on a previous occasion he exercised the jurisdiction under s. 260 and that a judge who has operated s. 260 previously and refused access to the court would be predisposed to uphold s. 260 on a later occasion.

16. The applicant’s application is subtle. He does not argue that the judge in question is biased (either subjectively or objectively) against him. He submits that a judge who has previously exercised the same jurisdiction in the same manner could reasonably be expected to be predisposed to uphold the jurisdiction in any challenge to the jurisdiction; and that this is an appeal which is a challenge to the jurisdiction in that the applicant is asserting that the High Court judge exceeded his jurisdiction conferred by s. 260.

17. The constitutionality of s. 260 is not in issue in this case. That is a matter which the applicant has indicated he wishes to raise, and for which he has got the leave of the court to so do, at a later stage. Thus in this case neither this court, not any member of it, has to determine any question as to the constitutionality of the jurisdiction of s. 260. The section is the law of the land and under our jurisprudence is presumed to be constitutional.

18. Every person appointed a judge under the Constitution makes a declaration as set out in Article 34.5.1° of the Constitution, in the following terms:

“In the presence of Almighty God I,

do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Judge of the . . . Court without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.”

19. Accordingly it is part of the duty of a judge to uphold the laws. This includes operating the laws of the land.

20. Thus while the applicant’s application is subtle it is misconceived. All judges have a duty to uphold the laws of the land and this includes s. 260 of the Mental Treatment Act, 1945. This means operating the section when applications are made under the jurisdiction created therein. Thus no judge could be recused on the ground that on a previous occasion he or she had exercised a jurisdiction which is the law of the land. If this were so no judge could hear this appeal who has previously made any order under s. 260. As this is the only ground upon which the application is made it must fail.

21. There was no claim of bias either subjective or objective. The applicant’s claim is clouded by his ultimate aim to challenge the constitutionality of s. 260 of the Mental Treatment Act, 1945. However, that is a matter for another day.

6. Conclusion

22. I am satisfied that the applicant’s application is misconceived and that he has not raised a ground upon which Murphy J. should be recused from this case. Accordingly, also, in accordance with my duty as President of the Court, I am satisfied that the application should fail. This case should now be put in the list to obtain a date for hearing.

THE SUPREME COURT

329/00

DENHAM J

MURPHY J

GEOGHEGAN J

IN THE MATTER OF THE COURTS OF JUSTICE ACT 1924-1961 AND

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961-1981 AND

IN THE MATTER OF AN INTENDED ACTION BETWEEN LOUIS BLEHEIN

APPLICANT/ APPELLANT

AND

ST JOHN OF GOD HOSPITAL (STILLORGAN, CO. DUBLIN)

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 31 ^ST DAY OF JULY, 2001

_______________________________________________________________________

23. The Applicant/ Appellant (Mr Blehein) wishes to institute proceedings against St John of God Hospital (the Respondents) for a declaration that his detention in St John of God’s Hospital for various periods in 1984, 1987 and 1991 was unlawful and that his treatment there was unconstitutional and constituted an assault and claim the reliefs set out in the draft plenary summons exhibited in an affidavit sworn by Mr Blehein on the 27th day of October, 1999.

24. It is clear, and accepted by Mr Bleihein, that the acts of which he complains were done in pursuance or purported pursuance of the Mental Treatment Act, 1945. Accordingly it was necessary for him to apply pursuant to s.260 of the Act of 1945 for leave to institute such proceedings. The application on that behalf was heard by O’Sullivan J who refused the leave for the reasons set out in the judgment delivered by him on the 6th of July, 2000, and it is from that judgment and the order made thereon Mr Blehein appeals to this Court.

Section 260 (1) aforesaid provides as follows:-

25. Mr Blehein appeared on his own behalf. On the opening of the appeal Mr Blehein submitted that I should recuse myself from the hearing on the grounds that I participated and delivered a judgment in an appeal entitled Blehein .v. Murphy & Ors (unreported delivered the 13th July, 2000). The application was made with commendable propriety. Mr Blehein expressed his concern that my participation in the appeal would or might give the impression of offending the principle nemo iudex in sua causa which he cited. Whilst I did explain to Mr Blehein that I would be happy to recuse myself I did not think I would be justified in so doing. I explained I would adopt the procedure suggested by the Chief Justice in his judgment in Rooney .v. The Minister for Agriculture [2001] 2 ILRM 37. What the Chief Justice suggested there (at page 40) was:-

“Where one or other party does invite a judge to disqualify himself, the established and prudent practice has been for the judge concerned to disqualify himself if he has any reservations about the matter. On the other hand a judge cannot permit a scrupulous approach by him to be used to permit parties to engage in a form of shopping under the guise of challenging the partiality of the Court. The need to ensure the appearance, as well as the reality, of impartiality must be reconciled with the proper functioning of the judicial system. The dilemma to which these conflicting demands give rise might be resolved in cases of difficulty by the judge concerned referring the issue - perhaps on the issue of a memorandum prepared by him or her - to the senior available judge of the Court of which he is a member. Such a course would be acceptable in cases of particular difficulty but I do not believe that this procedure should develop into common practice. The disclosure of possible grounds for concern and the sensible reaction of the parties, advised by their lawyers, has usually been sufficient to dispose of any such difficulty and I do not doubt this will continue to be the case.”

26. The further debate which took place in relation to Mr Blehein’s application made it clear that his objection extended to any and every judge who had made an order in any case refusing leave under s.260 of the Act of 1945. It was argued that apart from and in addition to the challenge which Mr Blehein proposes to make to the constitutionality of that Section he asserts that no judge may refuse or impede a potential litigant having access to the Courts.

27. What Mr Blehein says is that any judge who has refused an application under s.260 aforesaid has in effect prejudged an issue which arises on the appeal. In my view his concern is based on a misapprehension of the concept or relevance of a reasonable apprehension of bias.

28. If the Supreme Court had expressly held that judge of the High Court was entitled to exercise the jurisdiction apparently conferred upon him by s.260 of the Act of 1945 - whether on foot of the judgment delivered by me or otherwise - then that would be the law and as such would bind all lawyers and litigants unless and until the Supreme Court took the exceptional, but not impossible, step of reversing its own decision. An accusation of bias could not be levelled at any judge on the grounds that it was anticipated that he would apply the law as enunciated by the Supreme Court.

29. If, however, the position is, as I believe it to be, that the argument on which Mr Blehein now relies has never previously been addressed to this Court and neither the Court nor any member of it has given judgment on the issue as to whether the jurisdiction apparently conferred on a judge of the High Court by s.260 aforesaid can be exercised constitutionally then the question of pre judgment or bias in that regard simply does not arise.

30. If Mr Blehein was legally represented I would have felt bound to refuse the application to disqualify myself. It was only because Mr Blehein appeared on his own behalf and without the benefit of legal advice that I felt it appropriate to rely on the procedure outlined by the Chief Justice in the Rooney Case. Accordingly I deferred to the views of the President of the Court. If Mrs Justice Denham had any concern that my presence on the Court might give rise to a reasonable apprehension of bias then I would have withdrawn. Having regard to the judgment which she has now delivered I would not be justified in disqualifying myself.