C v John Casey

JudgeMs. Justice Pilkington,Mr. Justice Murray
Judgment Date02 February 2022
Neutral Citation[2022] IECA 24
CourtCourt of Appeal (Ireland)
Docket NumberHigh Court Record No. 2017/217 MCA
John Casey

[2022] IECA 24

Haughton J.

Murray J.

Pilkington J.

High Court Record No. 2017/217 MCA

Court of Appeal Record No. 2018/281



Leave to issue proceedings – Burden of proof – Mental Health Act 2001 s. 73 – Appellant seeking leave to issue proceedings – Whether the leave application could be categorised as frivolous or vexatious

Facts: The appellant sought leave to issue proceedings pursuant to s. 73 of the Mental Health Act 2001, as amended, arising from certain events that occurred whilst he was in custody at Clifden garda station, Galway, on 23 April 2013 which in turn led, in the early hours of 24 April 2013, to his involuntary admission to the Mental Health Unit of UHG, pursuant to the provisions of the 2001 Act. The appellant appealed to the Court of Appeal from the order of the High Court (Barrett J) dated 31 May 2018, perfected on 7 June 2018 refusing the application for leave to commence proceedings. The appellant raised the following grounds of appeal: (1) Barrett J did not avail himself, as requested, of discovery of the contemporaneous video/audio evidence to show appellant’s state of mind at the precise time of sectioning; (2) none of the supplementary evidence accepted by Barrett J after the hearing were referred to or figured in his judgment; (3) Barrett J made no reference to the respondent, Dr Casey, signing him off as “fit for interview, no underlying medical condition” in the custody register; (4) the assertion within the respondent’s own affidavit saying “he is not guilty by his own admission is accepted as evidence” was no more than his assertion of “bona fide” behaviour; (5) to say that after 5 years enough latitude had been given to a litigant in person contradicted the fact that he was granted leave twice and encouraged to bring a fresh leave application; (6) there was good reason to doubt the respondent’s actions were honest, not a matter of well-meaning medical negligence and consequently not something that required an expert opinion on at least initially; (7) the apparent support from UHG Dr Khider Admissions/Discharge Sheet was criticised in the appellant’s submission post hearing and was so in court; (8) UHG contradicted the above by their own observations; (9) ignoring the Civil Bill 1076/16 with photos of neighbours, whose opinion of him Dr Casey used when making his decision about him on the night in prison presented to him by certain gardai who it was contended were implicated in both Civil Bill 1076/16 and JR Leave Document; and (10) to pretend there was no semblance of a case other than assertion required the systematic redaction of objective supporting evidence.

Held by Pilkington J that the trial judge’s finding that no grounds were presented by the appellant in his leave application other than by way of ‘mere assertion’ was not substantiated upon the facts of the case. In Pilkington J’s view, both criteria within s. 73 of the 2001 Act had been satisfied. Pilkington J held that the leave application grounded upon the intended pleadings could not be categorised as frivolous or vexatious; neither could it be said that there were no reasonable grounds for contending that the person against whom the proceedings were brought acted in bad faith or without reasonable care. Pilkington J noted that the core complaint of the appellant throughout his submissions was that Dr Casey after his initial medical assessment found no underlying medical condition and that he was fit for interview; within that assessment there was no reference to his needing any psychiatric assistance or exhibiting any traits consistent with his subsequent findings. Pilkington J noted that the second consultation occurred some 1 hour and 30 minutes after the initial consultation, and resulted in a diagnosis which, in Dr Casey’s view, necessitated the appellant’s involuntary detention. Pilkington J held that the discrepancies surrounding that decision to recommend involuntary detention, in the circumstances, were sufficient to pass the low threshold burden of proof and grant leave to the appellant pursuant to s. 73 of the 2001 Act.

Pilkington J held that the Court would set aside the order of Barrett J (including in respect of costs) and grant leave to the intended appellant pursuant to s. 73 of the 2001 Act to issue the intended proceedings in the form of the draft Civil Bill submitted to the Court.

Appeal allowed.


JUDGMENT of Mr. Justice Murray delivered on the 2 nd day of February 2022


. Statutory protection from civil liability for those facilitating the detention of persons pursuant to Mental Health legislation was first introduced in the law of England by s. 12 of the Lunacy Acts (Amendment) Act 1889. The terms of that provision were repeated in s. 330 of the Lunacy Act 1890. The approach adopted in those statutes (an immunity from suit for persons acting in good faith and with reasonable care combined with a power of the court to stay such proceedings where, on application to it, it was satisfied that there was ‘ no reasonable ground for alleging want of good faith or reasonable care’) was significantly adjusted in the United Kingdom in favour of defendants to such suits by ss. 15 and 16 of the Mental Treatment Act 1930. These, in turn, were ‘ the prototype’ adopted by the draftsman of s. 260 of the Mental Treatment Act enacted in this jurisdiction fifteen years later (per Griffin J. O'Dowd v. The North Western Health Board [1983] ILRM 186 at p. 194 to 195 (‘ O'Dowd’)).


. That section (a) introduced a requirement that a plaintiff obtain leave of the High Court before instituting proceedings ‘ in respect of an act purporting to have been done in pursuance of’ that Act, (b) limited the causes of action that might be invoked by a plaintiff in such proceedings to those in which it was claimed that the defendant ‘ acted in bad faith or without reasonable care’ and (c) conditioned the grant of such leave by imposing a requirement that there be ‘ substantial grounds for contending’ that the proposed defendant had thus acted.


. The rationale for the legislation was described by Henchy J. in the course of his judgment in O'Dowd at p. 196:

It is an unfortunate syndrome of certain kinds of mental illness that a patient compulsorily detained in a mental hospital for treatment conceives a deep-seated but quite unjustified conviction that his detention was unnecessary, even malevolent or unlawful, and that what he considers to be victimisation should give him a good cause of action for damages. The undesirability of giving free rein in the courts to such a delusional obsession is recognised by s. 260 of the Mental Treatment Act 1945.’ 1


. While different language might be used today, the essential justification underlying the legislation as so explained demonstrates the extremity of the situation with which the Oireachtas was concerned. It was in that context that Henchy J. recognised a trade-off of sorts within the 1945 Act. Whatever the constraints attending the institution of legal proceedings by a person the subject of involuntary committal, the process of such committal is a grave one significantly impacting the liberty and dignity of a person subjected to it. It is thus conditioned by important and necessary procedural requirements. Many of these are preconditions to the legality of the detention that follows, and a want of care in compliance with some of them may in certain circumstances give rise to civil liability on the part of those responsible for such negligence and/or in false imprisonment ( O'Dowd at p.204). The reasons are obvious ( O'Dowd at p. 205, referring to Articles 40.3.1 and 40.4.2 of the Constitution and Re Phillip Clarke [1950] IR 235):

It was the implementation of these constitutional guarantees that caused the Legislature to hedge round the making of a chargeable patient reception order with the formalities mandated by the Act and the regulations made under it. As Clarke's case shows, some of those formalities are only formalities; but others are clearly obligatory, designed to implement the constitutional guarantees I have quoted, and in particular to ensure that, not even for a short period, will a citizen be unnecessarily deprived of his liberty and condemned to the tragic and degrading status of a compulsory inmate of a mental hospital, with the dire social consequences that such a fate is likely to have on his future and on that of his relations’.


. While one might hope that the social consequences of such involuntary committal have been softened by time, experience and attitudinal change the central thesis of this dissent was important. The majority judgments (O'Higgins CJ. with whom Griffin J. agreed) allowed an appeal against a decision of Costello J. granting leave to the applicant to institute proceedings against a medical practitioner who (as Henchy J. described the sequence) had failed to comply with statutory requirements mandating examination of the patient upon arrival at a hospital, failed to ensure the reception order was made upon the arrival of the patient, failed to advise the patient of his entitlement to obtain in-patient treatment on a voluntary basis, and failed to complete an examination on his arrival as he had represented in the reception order he had done. There were, the majority found, no substantive grounds for the plaintiff's contention that the medical practitioner had acted without reasonable care, O'Higgins CJ. observing (at p. 190) that the provision did not seem to be ‘ unduly restrictive or unreasonable’.


. The court may have adopted a different view of the legislation when in Blehein v. Minister for Health and Children and ors. [2008] IESC 40, [2009] 1 IR 275, s. 260 was declared invalid having regard to the provisions of the Constitution. The...

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    ...been required prior to the commencement of the proceedings. Statutory context 21 . In common with the approach of Murray J. in C v. Casey [2022] IECA 24, it is appropriate to commence with some consideration of the historic context of s. 73. Statutory protection from civil liability for tho......

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