Blehein v Minister for Health Children

JudgeMr. Justice William M. McKechnie,Mr. Justice Gerard Hogan,Mr Justice Peter Charleton
Judgment Date31 July 2018
Neutral Citation[2018] IESC 40
CourtSupreme Court
Docket Number[S.C. No. 373 of 2013],Supreme Court appeal number: 2013 no 373 High Court record number: 2002 no 9652 P [Appeal No. 2013/373]
Date31 July 2018
- AND -



[2018] IESC 40

Charleton J.

Hogan J.

McKechnie J.

Charleton J.

Hogan J.

Supreme Court appeal number: 2013 no 373

[2018] IESC 000

High Court record number: 2002 no 9652 P

[Appeal No. 2013/373]

An Chúirt Uachtarach


Tort – Damages – Detention of appellant under Mental Treatment Act 1945 – Breach of constitutional rights - Redress

Facts: The appellant had been detained under the Mental Treatment Act 1945. He had applied for leave to challenge his detention under s 260 of that Act, and the High Court had found that the provisions of arts 6 and 34 of the Constitution were breached by s 260. The High Court had determined that the finding of constitutional invalidity was sufficient redress in the matter and dismissed the claim for damages. The matter now came on appeal.

Held by Charleton J, that the appeal would be dismissed. The Court considered the jurisprudence on constitutional torts and stated that judicial restraint required precise definition of the constitutional tort being considered. While the plaintiff had been put to trouble in bringing litigation, he had received redress and was not entitled to damages merely for the litigation itself.

McKechnie J handed down a judgment in which Charleton J concurred. Charleton J dissented from the reasoning in Hogan J’s judgment.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 31st day of July, 2018

Under section 260 of the Mental Treatment Act 1945 (‘the 1945 Act’), no civil proceedings could issue in respect of any act purported to have been done under its provisions, save by leave of the High Court, which leave could only be granted if there were substantial grounds for suggesting that the cited defendants acted ‘in bad faith or without reasonable care’ (subsection (1)). If leave was granted, a plaintiff had to establish both of those matters once again at trial (subsection (3)) and had to do so, at the level of probability. If he or she could not so establish, then on that ground alone no relief could be obtained under the section.


For ease of reference, the actual wording of section 260 in the form applicable to this case is as follows:

‘260.—(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 …

(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.

(4) …’

Whilst a leave requirement is still in place it has been very much altered by the amendment to that section, which is next referred to.


Section 260 was replaced in its entirety by section 73 of the Mental Health Act 2001 (‘the 2001 Act’), effective by Ministerial Order as and from the 1st November, 2006 (S.I. No. 411/2006). Its relevant terms are: -

‘73(1) No civil proceedings shall be issued 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 refused unless the High Court is satisfied: -

(a) that the proceedings are frivolous or vexatious, or

(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.’,

Subsections (2) and (3) replicate in precise form those which they replaced.


As can be seen this provision, in the first instance is much more responsive to current social, philosophical and legal thinking regarding mental health than its predecessor would be if still in force and secondly, is much more reflective of the required balance between affording protection from unjust legal threats to those who operate such coercive but necessary measures on the one hand, and preserving fundamental rights, such as the right to liberty, to bodily integrity and access to the courts, of those affected by such measures on the other hand. However, although the original provision has been removed from our statute book for well more than a decade, section 260 still forms the essential backdrop to this appeal.


Insofar as I can tell, this judgment is at least number fifteen in a long sequence of judgments arising out of several sets of proceedings instituted by the plaintiff/appellant against various parties between 1995 and 2002. One can add to this at least one ex-tempore decision, and perhaps even more. As all written judgments are available, with many being reported, it is not necessary to recite once again the protracted and perhaps even torturous history of such litigation, which surely must have imposed great hardship and caused much stress and suffering for all concerned. Whatever the outcome of this appeal may be and whichever party it may favour, I can only hope that the judgments of this Court will be the concluding chapter in this long-running narrative.


As I will explain more fully in a moment, the plaintiff, having successfully challenged the constitutionality of section 260(1) of the 1945 Act, pursued a damages claim against the defendants above named. That claim came to an end in the High Court with the judgment of Laffoy J. delivered on the 26th June, 2013 ( [2014] 2 I.R. 38) (‘the 2013 judgment’), wherein his claim for loss, damage and personal injuries, including hurt, distress and humiliation, arising out of the events herein described was held to be statute barred, even if it was otherwise sustainable as a matter of law. Further, his secondary assertion that he ‘felt greatly humiliated and demoted to the rank of a second class citizen’ and that his reputation was prejudiced in being obliged to seek leave under the subsection, in the first instance, was also rejected. The learned trial judge so concluded for two essential reasons: first that the declaration of invalidity in and of itself was a sufficient vindication of rights but secondly and in any event, this heading of claim was governed by the decision of this Court in Keating v. Crowley [2010] 3 I.R. 648 at 670 (para. 33 infra). Accordingly, the plaintiff's entire claim for damages was dismissed.


In his Notice of Appeal dated the 20th August, 2013, Mr. Blehein alleges that the learned trial judge erred on mixed questions of fact and law which he described as follows:

(a) that acquiescence in a decision of the court constitutes agreement therewith;

(b) that he was not entitled to damages for the injuries suffered by reason of section 260 of the 1945 Act, which was subsequently deemed unconstitutional; and

(c) that his damages claim was statute barred.

The appellant also claims that the liability of the respondents to him in these proceedings is the same as what the liability of the proposed defendants would have been in the various actions which he sought to issue or pursue - under the provisions of the now invalidated section 260. Finally, he further submits that the decision in In Re Philip Clarke [1950] I.R. 235 violates his constitutional rights and therefore should be both vacated and reversed. In reality, however, and despite how these grounds are phrased, the major issues on appeal are those referred to at subparagraphs (b) and (c) herein.


Although the historical detail of Mr. Blehein's litigation has been outlined exhaustively elsewhere, nonetheless some background is still necessary in order to provide context for this judgment. What is required in that regard can conveniently be considered by referring to the following: first, during the periods next mentioned, the appellant claims that he was ‘escorted’ by the gardaí to St. John of God Hospital, Dublin, where he was involuntarily detained under the provisions of the 1945 Act and whilst so held was administered drugs against his will; second, the pre-2002 series of proceedings instituted by him, and finally, those proceedings which issued on 11th of July of that year, within which the current judgment is given.


There is no dispute about the periods of detention involved, which were three in number and were as follows:

• From the 25th February, 1984, to the 16th May, 1984

• From the 29th January, 1987, to the 16th April, 1987

• From the 17th January, 1991, to the 7th February, 1991

No other restraint or confinement, if either took place, is relied upon.

Proceedings: 1995 – 2001

The following series of proceedings were issued during this period:

(i) In November 1995, Mr. Blehein instituted proceedings in which the primary relief sought was a declaration that sections 185 and 186 of the 1945 Act were invalid having regard to the provisions of the Constitution, and that as a result he, who had suffered loss and harm, was entitled to personal injury damages in respect thereof. Those proceedings were struck out for no appearance in 1999, with the plaintiff's application for re-entry being dismissed by Laffoy J. on the 16th March, 2009 ( [2009] IEHC 182). That decision was apparently appealed to this Court: its current status remains unclear. In any event, it is not germane to the issues currently arising.

(ii) On the 4th November 1996, the plaintiff's application for leave to apply for certiorari by way of an application for judicial review was refused by both the High Court...

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