Blehein v Minister for Health

• Jurisdiction: Ireland
• Judge: Miss Justice Mella Carroll
• Judgment Date: 07 December 2004
• Neutral Citation: [2004] IEHC 374
• Court: High Court
• Docket Number: [2002 No. 9652P]
• Date: 07 December 2004

[2004] IEHC 374

THE HIGH COURT

No. 9652 P/2002

BLEHEIN v. MINISTER FOR HEALTH & ORS

BETWEEN/

LOUIS BLEHEIN

PLAINTIFF

AND

THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Abstract:

Constitutional law - Declaration - Mental health - Access to courts - Restriction thereon - Leave of court required - Leave to be granted only where substantial grounds for contending that person against whom proceedings brought acted in bad faith or without reasonable care - Plaintiff seeking declaration that provision restricting access to courts unconstitutional - Mental Treatment Act 1945, section 260 - Bunreacht na hÉireann, Articles 6 and 34.

section 260 of the Mental Treatment Act 1945 provides that "(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 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." The plaintiff who was diagnosed as suffering from paranoid schizophrenia was admitted to St. John of Gods hospital. He applied for and was refused leave to challenge his committal. He then applied for, inter alia, a declaration that section 260 of the Act of 1945 was unconstitutional as being, inter alia, a legislated denial of access to justice contrary to Article 6.

The State contended that section 260 was a legitimate restriction of the plaintiff's personal rights, having regard under Article 40 of Bunreacht na hÉireann, to his difference in capacity.

Held by Carroll J in declaring that section 260 of the Act of 1945 was unconstitutional that the limitation of access to the courts on two specified grounds constituted an impermissible interference by the legislature in the judicial domain contrary to Article 6 of Bunreacht na hÉireann providing for the separation of powers and Article 34 providing for the administration of justice in the courts.

Reporter: P.C.

1 Judgment of Miss Justice Mella Carroll delivered the 7th day of December 2004.

2 This is an action challenging the constitutionality of s. 260 of the Mental Treatment Act, 1945as amended (the 1945 Act). Section 260 of the 1945 Act as amended by s. 2(3) of the Public Authorities Judicial Proceedings Act, 1954provides as follows:

3 (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.

4 (2) Notice of an application for leave to 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.

5 (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.

6 The plaintiff, who was diagnosed as suffering from paranoid schizophrenia, was admitted to St. John of God Hospital, Stillorgan, County Dublin on three occasions from 25 ^th February, 1984 to 16 ^th May, 1984, from 29 ^th January, 1987 to 16 ^th April, 1987 and from 17 ^th January, 1991 to 7 ^th February, 1991. He applied for and was refused leave to challenge his committal.

7 The most recent judgment of the Supreme Court was delivered by McGuinness J. on 31 ^st May, 2002 (unreported) ( Blehein v. St. John of God Hospital and Anor.). The background facts are set out in that judgment as also in an earlier reported judgment of the Supreme Court ( Blehein v. Murphy & Ors. [2000] 3 I.R. 359).

8 In the proceedings against St. John of God Hospital, the plaintiff sought at a very late stage to amend his pleadings to include a constitutional challenge to s. 260. However, McGuinness J. said at p. 27 that to amend an application for leave to appeal under s. 260 to include a constitutional challenge was not a satisfactory form of procedure. She said his correct course would be to commence new proceedings by plenary summons in order to challenge the constitutionality of the section. That is what he has now done.

9 The plaintiff argues:

10 (1) that the presumption of constitutionality does not apply if the impugned statutory provision plainly shows on its face a repugnancy to the Constitution ( Loftus v. AG [1979] I.R. 21 at 238).

11 (2) Each citizen has a right of access to the courts pursuant to Article 40.3 of the Constitution. To deny leave to institute proceedings is to deny access to the courts and is to deny access to justice. Article 34 provides:

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution..."

12 (3) The High Court and on appeal the Supreme Court have a duty to protect rights guaranteed by the Constitution. It is impossible that the High Court should have a peremptory duty to administer justice and at the same time a statutory duty under section 260 to deny access to justice. The two are mutually exclusive and cannot co-exist in the same office. It must follow that section 260(1) is an unwarranted interference by the Oireachtas in the operation of the courts in a judicial domain.

13 (4) Section 260 is a legislated denial of justice contrary to Article 6 of the Constitution. Article 6 provides:

"These powers of government (i.e. legislative, executive and judicial) are exercisable only by or on the authority of the organs of State established by this Constitution."

14 (5) The imposition of conditions (acted in bad faith or without reasonable care) is a disability imposed by statute for those seeking redress against the provisions of the 1945 Act. Those affected by the Act are already disadvantaged and the provision is there for legislated prejudice.

15 (6) No objective criteria have been laid down by the courts whereby bad faith can be established. You cannot look into a person's mind to see what their motives were. In the absence of defined objective criteria it is an impossible condition. Reasonable care in relation to matters arising under the Act may only be established with the aid of psychiatric evidence which in this country is unavailable if the profession is under attack. Lack of reasonable care has to do with the tort of negligence and has no part in the vindication of personal human rights under the Constitution. The conditions are therefore impossible. For the courts to deny justice based on them is an act ultra vires the courts as the courts cannot act contrary to justice.

16 (7) The nature of the guarantee in Article 40.3.1 is according to the Irish version: "Gan cur isteach" i.e. "not to interfere with" rather than "to respect", which is...