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Cite as: [2009] 1 IR 275, [2008] IESC 40

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Judgment Title: Blehein -v- The Minister for Health & Children and ors

Neutral Citation: [2008] IESC 40

Supreme Court Record Number: 65/05

High Court Record Number: 2002 9652 P

Date of Delivery: 10 July 2008

Court: Supreme Court

Composition of Court: Denham J., Hardiman J., Geoghegan J., Kearns J., Macken J.

Judgment by: Denham J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Denham J.	Appeal dismissed - affirm High Court Order	Hardiman J., Geoghegan J., Kearns J., Macken J.

Outcome: Dismiss

THE SUPREME COURT

[S.C. No: 065 of 2005]

Denham J.
Hardiman J.
Geoghegan J.
Kearns J.
Macken J.

Between/

Louis Blehein

Plaintiff/Respondent

and

The Minister for Health & Children, Ireland,
and the Attorney General

Defendants/Appellants

Judgment of the Court delivered the 10th day of July, 2008 by Denham J.

1. This is an appeal by the Minister for Health and Children, Ireland and the Attorney General, "the State", from the judgment of the High Court (Carroll J.) delivered on the 7th December, 2004.
2. There is a long history to this case, which it is not necessary to set out in detail. Previous proceedings have been brought by Louis Blehein, the plaintiff/respondent, "the plaintiff", see Blehein v. St. John of God Hospital, Supreme Court, unreported 28th May, 1998, Blehein v. Murphy & ors [2000] 3 I.R. 359; and Blehein v. St. John of God Hospital and Anor, an unreported judgment delivered on 31st May, 2002, in which McGuinness J. refused a late application to amend pleadings to include a constitutional challenge to s.260 of the Mental Treatment Act, 1945, as amended, "the Act of 1945". However, at that time it was stated that if the plaintiff wished to challenge the constitutionality of the legislation the correct course would be to commence new proceedings by plenary summons. These are such proceedings.

3. The plaintiff set out in his Statement of Claim three occasions on which he was involuntarily admitted to St John of God Hospital, Stillorgan. These were: (a) from 25th February, 1984 to 16th May, 1984; (b) from 29th January, 1987 to 16th April, 1987; and (c) from 17th January, 1991 to 7th February, 1991. He applied under s.260(1) of the Act of 1945 for leave to bring proceedings and he was refused leave to challenge his committal.

4. Consequently, the plaintiff has brought these proceedings, seeking a declaration that s.260 of the Act of 1945, is invalid having regard to the provisions of the Constitution of Ireland, 1937. He also seeks damages for infringement of his constitutional rights, and for personal injury, loss and damage.

5. The High Court declared that s.260 of the Act of 1945, as amended, was unconstitutional, having regard to Article 6 and Article 34 of the Constitution. The State has appealed against this determination.

6. Section 260 of the Mental Treatment Act, 1945, as amended by s.2(3) of the Public Authorities Judicial Proceedings Act, 1954,provided as follows:-

"(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."

7. The Act of 1945 has been repealed by the Mental Health Act, 2001, of which s.73 makes new provisions. Section 73 came into force on 1st November, 2006, and is not an issue in this appeal.

8. Thus the issue in this appeal is historic, as it relates to s.260 of the Act of 1945 which has been repealed. However, it is relevant to the plaintiff, who has a claim for damages outstanding.

9. The single issue before the Court is the constitutional validity of s.260 of the Act of 1945. Did the High Court err in declaring s.260 of the Act of 1945 unconstitutional?

10. The learned High Court judge stated:-
"In my opinion there is as a very real difference between the provisions of the various Acts quoted by the State which provide that leave to apply for judicial review shall not be granted unless the High Court is satisfied there are “substantial grounds” for contending a decision (etc.) is invalid or ought to be quashed and Section 146 of the 1945 Act which provides that leave to institute civil proceedings shall not be granted unless the High Court is satisfied that there are “substantial grounds” for contending specific grounds exist. In the former the High Court is at large to decide what grounds would justify an application provided they are substantial. Under s. 146 the High Court is confined to considering two grounds (i.e. acting in bad faith or without reasonable care) and its only discretion is in determining whether either of those grounds is substantial.

In my opinion the limitation of access to the courts on two specified grounds constitutes an impermissible interference by the legislature in the judicial domain contrary to Article 6 of the Constitution providing for the separation of powers and Article 34 providing for the administration of justice in the courts.

The legislature is permitted to provide that whatever grounds are deemed by the High Court in its discretion to be worthy of consideration in deciding whether to grant leave to apply to court should be substantial (see In Re Illegal Immigrants (Trafficking) Bill [2000] 2 IR 360). But in my opinion the legislature is not entitled to limit access to the High Court on specific grounds as provided in s. 146. This provision is apparent on the face of the section therefore the presumption of constitutionality does not apply (see Loftus v. A.G. [1979] I.R. 221).

Since the relief sought by the plaintiff basically consists of seeking a declaration setting out his arguments, it seems to me the appropriate order is a declaration that s. 260 of the Mental Treatment Act, 1945 (as amended) is unconstitutional having regard to Article 6 and Article 34 of the Constitution."

11. The High Court held that the legislature is not entitled to limit access to the High Court on specific grounds as provided for in s.260 of the Act of 1945.
The issue before this Court on appeal is net. The words of s.261(1) of the Act of 1945 limit access to the court, requiring a person, when seeking access to the court by way of a s.260(1) application, to make a case of "bad faith or without reasonable care", even if neither bad faith nor lack of reasonable care are part of his intended litigation.
13. Unfortunately, because of the history of serial proceedings by the plaintiff, this constitutional issue has been separated from findings of fact. Determinations of constitutionality of legislation are best made on a bed of fact. However, special circumstances have given rise to these proceedings, as referred to earlier in the judgment.

14. The Court is satisfied that the High Court was correct and would affirm its decision for the reasons given by the learned High Court judge, as set out in paragraph 10 above.

15. The objective of the Mental Treatment Act, 1945, was set out in the long title. It was an Act to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom, and to provide for other connected matters. Section 260 required the leave of the High Court for certain proceedings, such as those applied for by the plaintiff. In Murphy v. Greene [1990] 2 I.R. 566 this Court held that in requiring the leave of the High Court as a precondition to the institution of proceedings under the Act of 1945, s.260 was a curtailment of the constitutional right of access to the courts and thus should be strictly construed. Finlay C.J. stated:-

"Section 260 of the Mental Treatment Act, 1945, is

prima facie

a curtailment of the constitutional right of every individual of access to the courts to the extent that it requires a precondition of leave of the court for the bringing by him of a claim for damages for an asserted wrong. It seems reasonable, as was stated by O'Higgins C.J. in

O'Dowd v. North Western Health Board

[1983] I.L.R.M. 186, that one of the reasons for this curtailment is to prevent a person who is or has been thought to be mentally ill from mounting a vexatious action, or one based on imagined complaints."

The purpose of s.260 was to give a limited protection to persons acting under the Act. This is a legitimate purpose for such legislation. But the section is a restriction of a constitutional right (access to the courts), in the context where the fundamental constitutional right of liberty has itself been restricted. Thus, it is a matter of seeking a reasonable and proportionate process.
16. The fact that access to court is restricted is not of itself unconstitutional. For example, this Court has held that the requirement in legislation to show "substantial grounds" in an application is not unconstitutional: In Re Illegal Immigrants (Trafficking) Bill 1999 2 I.R. 360 at 395. This Court has itself restricted access in ordinary litigation: Wunder v. Hospitals Trust (1940) Ltd Supreme Court, 24th January, 1967 and 22nd February, 1972.

17. The limitation of access to the court in this case, was not just one of "substantial grounds", it was to situations where the High Court was satisfied that there were substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care. It was a restriction on the administration of justice where several features of the section are important. It placed a burden on a plaintiff, it related to two specified grounds only, it limited access to the courts, it curtailed the discretion of the court in a situation where a balance of constitutional rights is required to be protected.

18. At issue in the case is the liberty of the plaintiff, an important constitutional right. While the aim of the Act of 1945 was legitimate, the limitation on the right of the plaintiff should not be overbroad, should be proportionate, and should be necessary to secure the legitimate aim. As Costello P. stated in Heaney v. Ireland [1994] 3 I.R. 593 at 607:-

"The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
impair the right as little as possible, and
be such that their effect on rights are proportionate to the objective …"
In this case the objective of the Act of 1945, as set out above, is legitimate. It is important. But it is not of sufficient importance to override the constitutional right of liberty and the constitutional right of access to the Courts, in the terms of the section, for the reasons given by the High Court. The terms of the section do not pass a proportionality test, for while being rationally connected to the objective, it is arbitrary (in referring to only two possible grounds of application) and hence unfair. It therefore does not impair the rights involved as little as possible, and so the effect on rights is not proportionate to the object to be achieved.
Consequently the Court would affirm the judgment and order of the High Court.
19. The High Court found that the whole of s.260 was invalid. In essence this was a finding as to the specified grounds of s.260(1). The decision as to s.260(2) and s.260(3) was entirely consequential to the findings as to the specified grounds in s.260(1) and not an inherent finding on s.260(2) or s.260(3). It is on this construction that the order is affirmed, there being no specific infirmity at issue in s.260(2) or s.260(3), but rather the foundations of s.260(1) which is found to be infirm.

20. Conclusion
For the reasons given the Court would dismiss the appeal and affirm the order of the High Court.