Blehein v Minister for Health

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Denham J.
• Judgment Date: 10 July 2008
• Neutral Citation: [2008] IESC 40
• Docket Number: [S.C. No. 65
• Date: 10 July 2008

Blehein v Min for Health & AG

Between/

Louis Blehein

Plaintiff/Respondent

and

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

Defendants/Appellants

[2008] IESC 40

Denham J.

Hardiman J.

Geoghegan J.

Kearns J.

Macken J.

[S.C. No: 065 of 2005]

THE SUPREME COURT

Abstract:

Constitutional law - Mental health law - Liberty - Access to the courts - Order made - Proportionality - S. 260 Mental Treatment Act 1945

Facts: The State appealed from a decision of the High Court, finding s. 260 of the Mental Treatment Act 1945 unconstitutional, on the grounds that it restricted access to justice of individuals subject to involuntary detention who wished to challenge their detention.

Held by the Supreme Court per Denham J. (Hardiman, Geoghegan, Kearns, Macken JJ. concurring), that the objective of s. 260 of the Act of 1945 was legitimate and important but it was not sufficiently important to override the constitutional right of access to justice. The terms of the section did not pass a proportionality test and the Court would affirm the judgment and order of the High Court. The High Court had found all of s. 260 to be unconstitutional but rather s. 260(1) was infirm and the findings as to the other sections were consequential.

Reporter: E.F.

BLEHEIN v ST JOHN OF GOD HOSPITAL UNREP SUPREME 20.5.1998 1999/3/389

BLEHEIN v MURPHY & ORS 2000 3 IR 359 2000/2/626

BLEHEIN v ST JOHN OF GOD HOSPITAL UNREP SUPREME 31.5.2002 2002/4/681

MENTAL TREATMENT ACT 1945 S260

CONSTITUTION ART 6

CONSTITUTION ART 34

PUBLIC AUTHORITIES (JUDICIAL PROCEEDINGS) ACT 1954 S2(3)

MENTAL HEALTH ACT 2001 S73

MENTAL TREATMENT ACT 1945 S261(1)

MENTAL TREATMENT ACT 1945 S260(1)

MURPHY v GREENE 1990 2 IR 566

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

WUNDER v HOSPITALS TRUST (1940) LTD UNREP SUPREME 24.01.1967

HEANEY v IRELAND 1994 3 IR 593 1994 2 ILRM 42

MENTAL TREATMENT ACT 1945 S260(2)

MENTAL TREATMENT ACT 1945 S260(3)

10 th day of July, 2008by Denham J.

Denham J.

1 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 7 ^th December, 2004.

2 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 28 ^th 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 31 ^st 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 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 25 ^th February, 1984 to 16 ^th May, 1984; (b) from 29 ^th January, 1987 to 16 ^th April, 1987; and (c) from 17 ^th January, 1991 to 7 ^th 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 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 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 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:-

2 "(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 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 1 ^st November, 2006, and is not an issue in this appeal.

8 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 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 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...