Blehein v The Minister for Health and Others

CourtHigh Court
JudgeMs. Justice Laffoy
Judgment Date26 June 2013
Neutral Citation[2013] IEHC 319
Docket Number[2002 No. 9652P]
Date26 June 2013

[2013] IEHC 319

[2002 No. 9652P]


Practice and procedure - Mental Health law - Invalidity - Constitutional declaration - Limitation of action - Detention - Claim for damages - Statute of Limitations, 1957 Mental Treatment Act 1945

Facts: The Court had previously found s. 260 Mental Treatment Act 1945 unconstitutional, having regard to Article 6 and Article 34 of the Constitution. The Court considered whether the plaintiff was entitled to damages. He argued that because of the existence of s. 260, he was precluded from pursuing three actions, in 1997, 1998 and 1999. The factual basis of the application was that he had been wrongfully admitted to detention in a mental health facility. The defendants contended that the defence of the application of the Statute of Limitations, 1957 applied to the three sets of proceedings.

Held by Laffoy J. that there would be an order declaring that the plaintiff did not have an entitlement to an award of damages against the defendants. The rights of the plaintiff had been vindicated by the declaration of invalidity of s. 260(1). It was a matter of public record that the plaintiff should not have been required to bring the applications. The plaintiff could not establish any loss or damage on the basis of possible application of the Statue of Limitations, 1957.

Ms. Justice Laffoy
Judgment of Ms. Justice Laffoy delivered on 26th day of June, 2013.

The 2010 judgment


1. In my judgment (under neutral citation [2010] IEHC 329) in this matter delivered on 24th August, 2010 (the 2010 judgment), I outlined the nature and procedural history of the proceedings and the issue then before the Court. In summary, in a judgment delivered on 7th December, 2004 in the High Court by Carroll J. (which is reported at [2004] 3 I.R. 610), the Court had found that s. 260 of the Mental Treatment Act 1945 (the Act of 1945) was unconstitutional having regard to Article 6 and Article 34 of the Constitution. On appeal by the defendants against that order, the Supreme Court, in a judgment dated 10th July, 2008 (reported at [2009] 1 I.R. 275), dismissed the appeal and affirmed the order of the High Court. The proceedings were subsequently re-entered in the High Court with the consent of the defendants. The issue which this Court addressed in the 2010 judgment was what relief or remedy (if any), as a matter of law, flowed from the decision of the Supreme Court, that is to say, whether or not, and to what extent, the declaration as to the invalidity of s. 260 gave rise to any further remedy and, if so, the nature of the remedy. In reality, the focus of the issue was whether the plaintiff is entitled to damages against the defendants in addition to the declaration of invalidity in these proceedings.


2. The outcome of the consideration of that issue by this Court in the 2010 judgment was inconclusive. The source of the inconclusivity primarily was concerns raised by a passage in the judgment of Henchy J. in Murphy v. Attorney General [1982] I.R. 241 (at p. 314), which is quoted in para. 6.3 of the 2010 judgment, and which was emphasised by counsel for the defendants. Henchy J. stated that it is not a universal rule that what is being done in pursuance of a law which has being held to be invalid for constitutional or other reasons will necessarily give a good cause of action. He stated that the law has to recognise that there may be “transcendent considerations” which make it “undesirable, impractical, or impossible” to correct “prejudice suffered at the hands of those who act without legal justification, where legal justification is required”. While I concluded that it would be neither impractical nor impossible to determine whether the plaintiff had a good cause of action for damages, I concluded that it would be undesirable to embark on a determination of the fundamental issue as to whether there were other “transcendent considerations” which militated against a determination that the plaintiff had a good cause of action for damages at that stage of the proceedings because, in effect, the Court would have been doing so in the abstract and, in any event, there might be factors which rendered such a determination unnecessary. One of those factors was the defendants’ reliance on the Statute of Limitations as a defence to the plaintiff’s claim for damages in the proceedings. The concerns of the Court were bolstered by the recent observations of Murray C.J. in D.K. v Crowley (now reported at [2011] 1 ILRM 309) quoted in para. 9.6 of the 2010 judgment.


3. Accordingly, the decision recorded at the end of the 2010 judgment (at para. 12.12) was to postpone a finding on the issue before the Court until issues, such as the defendants’ reliance on the Statute of Limitations 1957 (the Act of 1957), as amended, had been considered by reference to relevant evidence because, having regard to the observations of Murray C.J. in D.K. v. Crowley [2011] 1 ILRM 309, if the Court had to assess damages, the legal basis for liability of the State would have to be determined by the Court with regard to each head of damages.


4. The matter was before the Court for mention on at least four occasions subsequent to the 2010 judgment and prior to 4th February, 2011. During that period there had been correspondence between the Chief State Solicitor, on behalf of the defendants, and the plaintiff, who is a personal litigant, in relation to how the matters raised by the Court in the 2010 judgment should be addressed. When the matter came before the Court on 4th February, 2011 it became apparent that there was a misunderstanding as to what was to happen on that day. The matter was adjourned until 18th March, 2011. However, the Court gave directions as to what was to happen on 18th March, 2011, having regard to submissions which had been made by both the plaintiff and counsel for the defendants. The Court acceded to a suggestion made by counsel on behalf of the defendants that on 18th March, 2013 the plaintiff should personally give evidence to the Court as to the factual matters underlying his claim for damages in these proceedings and should not be inhibited in that regard, but that as regards cross-examination of the plaintiff by counsel for the defendants, the cross-examination should be limited to effectively two discrete issues: first, the implications of the existence of proceedings initiated by the plaintiff in 1993, details of which will be set out later, which were not prosecuted by the plaintiff, on the plaintiff’s entitlements to damages against the defendants in these proceedings; and, secondly, the implications of the Act of 1957 on the plaintiff’s claim for damages against the defendants in these proceedings.


The evidence


5. The plaintiff’s evidence was given to the Court over two days: on 18th March, 2011 and on 27th May, 2011. There is a transcript available of each hearing.


6. In broad terms, the basis of the plaintiff’s claim for damages in these proceedings is that, because of the existence of s. 260 of the Act of 1945, the repeal of which did not become effective until 1st November, 2006, he was precluded by the courts from pursuing three actions, which are referred to in the 2010 judgment as the 1997 proceedings, 1998 proceedings and the 1999 proceedings, in which he was seeking damages for wrongs alleged to be perpetrated by the defendants in those proceedings against him. In broad terms, the factual basis of the plaintiff’s claim for damages against the defendants in the 1997 proceedings and in the proposed 1998 proceedings and the proposed 1999 proceedings was that on three occasions the plaintiff was involuntarily admitted, in other words, wrongfully committed to The St. John of God Hospital, Stillorgan, Co. Dublin (the Hospital), and was detained there and was treated during the period of detention in a manner which infringed his personal rights under the Constitution.


7. The three periods during which the plaintiff was in the Hospital 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.


The plaintiff put before the Court a copy of each of the three orders made pursuant to s. 185 of the Act of 1945 on foot of which he was admitted to and detained in the Hospital. Each order was made on the application of Patricia Blehein, who was his wife, to whom the plaintiff referred as his “estranged wife”. The first was certified by Dr. Sean G. Murphy (Dr. Murphy) and Dr. S. Ahmed (Dr. Ahmed) on 25th February, 1984. The second was certified by Dr. Murphy and Dr. Fionnuala Kennedy (Dr. Kennedy) on 29th January, 1987. The third was certified by Dr. Murphy and Dr. Kennedy on 17th January, 1991. The plaintiff gave evidence as to the circumstances surrounding his admission to the Hospital and how he was transported to the Hospital. He also gave evidence of his treatment in the Hospital and, in particular, the drugs he was prescribed on the basis of case notes and other documentation of the Hospital. The plaintiff expressed his opinion on the inappropriateness of his treatment by reference to various medical publications.


8. In cross-examination, the plaintiff acknowledged that in the period from 1984 to 1990 he had consulted and had sought the services of at least four firms of solicitors in relation to his admission to and detention in the Hospital. He had been examined by a psychiatrist at the request of one firm during the first period of detention.


9. Five months after he was discharged from the Hospital for the last time, the plaintiff, by letter dated 8th July, 1991, wrote to Dr. Dermot...

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    ...normal rules relating to actions “founded on tort”: see McDonnell v. Ireland [1998] 1 IR 134; Blehein v. Minister for Health and Children [2014] 2 IR 38. 9 Insofar as the plaintiff sought to argue that those cases and the Simpson case, only apply to cases where a “constitutional tort” could......

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