J. O'T v Healy

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 09 October 2018
• Neutral Citation: [2018] IEHC 571
• Court: High Court
• Docket Number: [2017 No. 145 MCA]
• Date: 09 October 2018

[2018] IEHC 571

THE HIGH COURT

McDermott J.

[2017 No. 145 MCA]

IN THE MATTER OF SECTION 73 OF THE MENTAL HEALTH ACT 2001 AND IN THE MATTER OF INTENDED PROCEEDINGS

BETWEEN

J. O'T.

INTENDED PLAINTIFF

AND

NEIL HEALY, ANGELO GRAZIOLI, COMMISSIONER OF AN GARDA SÍOCHÁNA, MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

INTENDED DEFENDANTS

Unlawful deprivation of liberty – Negligence – Breach of contract – Intended plaintiff seeking damages – Whether leave to issue proceedings should be granted

Facts: The intended plaintiff initiated proceedings by way of plenary summons on 16th February, 2016 (Record No. 2016/1438 P) in which he sought damages for negligence and breach of duty (including statutory duty), breach of contract, unlawful deprivation of liberty, false imprisonment and breach of and failure to vindicate his constitutional rights and rights pursuant to the European Convention on Human Rights. A statement of claim was delivered on 20th September. The proceedings were initiated against Dr Healy and Dr Hoban practicing under the style and title of Bellview Clinic, Dr Grazioli, the Commissioner of An Garda Síochána, the Minister for Justice and Equality, Ireland and the Attorney General. The proceedings were struck out by an order made on 16th February, 2016 (Reynolds J) as the intended plaintiff had failed to obtain the leave of the court to issue the proceedings in accordance with s. 73 of the Mental Health Act 2001. The intended plaintiff sought leave to issue proceedings against the second, third, fourth, fifth, and sixth intended defendants based on the same alleged causes of action and facts as set out in the statement of claim delivered in the first proceedings. The first intended defendant, Dr Healy, was initially included in the relief sought. However, the motion insofar as it sought leave to initiate proceedings against him was struck out by consent on 21st June 2018.

Held by the High Court (McDermott J) that the second intended defendant, Dr Grazioli, had not established that there were no reasonable grounds to conclude that his actions were carried out in bad faith or without reasonable care; it had therefore not been demonstrated that there was no reasonable basis for making the claim sought to be advanced. McDermott J held that he would grant leave to issue proceedings against the second intended defendant seeking damages for negligence, breach of statutory duty, false imprisonment and breach of his constitutional right to privacy in supplying his medical details to the Gardaí.

McDermott J held that there were clearly issues of fact between Dr Grazioli, Garda Hannon and the intended plaintiff as to how and why the detention was effected; the lawfulness of the detention was also in issue between them. McDermott J held that it was appropriate to grant leave to issue proceedings against the third, fourth, fifth, and sixth intended defendants, the Commissioner of An Garda Síochána, the Minister for Justice and Equality, Ireland and the Attorney General, for the same reasons as leave was granted in respect of the second intended defendant since they were said to be liable in their various capacities for the actions of Garda Hannon and Dr Grazioli.

Leave to issue proceedings granted.

JUDGMENT of Mr. Justice McDermott delivered on the 9th day of October, 2018

1 This is an application for an order pursuant to s. 73 of the Mental Health Act 2001 (the 2001 Act) whereby the intended plaintiff seeks leave to issue proceedings against the intended defendants named above.

The First Proceedings

2 This application was preceded by the issuing of proceedings without the leave required under s.73. It is instructive because the applicant did not exhibit any draft proceedings in the course of this application to set out what is essentially the same claim made by him in the statement of claim delivered in the earlier proceedings. The intended plaintiff initiated proceedings by way of plenary summons on 16th February, 2016 (Record No. 2016/1438 P) in which he sought damages for negligence and breach of duty (including statutory duty), breach of contract, unlawful deprivation of liberty, false imprisonment and breach of and failure to vindicate the plaintiff's constitutional rights and rights pursuant to the European Convention on Human Rights. A statement of claim was delivered on 20th September. The first proceedings were initiated against Neil Healy and Davina Hoban practicing under the style and title of Bellview Clinic, Angelo Grazioli, the Commissioner of An Garda Síochána, the Minister for Justice and Equality, Ireland and the Attorney General.

3 The plaintiff claimed that on or about the 14th March, 2014 the first defendant, in breach of the provisions of s. 10 of the 2001 Act, purportedly caused a recommendation via a Mental Health Commission Form 5 to be completed for the involuntary admission of the plaintiff to an approved centre. It was alleged that the purported recommendation was completed even though no written application in the appropriate form Form 1, for a recommendation for involuntary admission pursuant to s. 9 of the Act had been made or was received by the first defendant and without the first defendant conducting an examination of the plaintiff within 24 hours of its receipt contrary to s. 10 of the Act. It was alleged that the first defendant wrongfully caused or permitted the original purported recommendation to be provided to An Garda Síochána in Mullingar, Co. Westmeath where it was mislaid by members of An Garda Síochána.

4 The statement of claim also alleges that on 26th March, 2014 the third defendant Angelo Grazioli caused a further Form 5 recommendation to be completed for the involuntary admission of the plaintiff at the behest of a member of An Garda Síochána to an approved centre. It is alleged that this recommendation was also completed without an application being made to or received by him pursuant to s.9 of the Act and without an examination of the plaintiff prior to the making of the recommendation.

5 It was further alleged that neither the first or third defendants took any steps to notify the plaintiff of the proposal to make the recommendation for his involuntary detention nor did they afford the plaintiff the opportunity to make any representations in respect of the making of the recommendation contrary to s. 4(2) of the 2001 Act.

6 It is also alleged that notwithstanding the invalidity of the recommendation purportedly made by Angelo Grazioli and his failure to notify the approved centre that it had been made, he caused this notification to be given to the plaintiff's estranged wife and a copy to be faxed to Pearse Street Garda Station without the plaintiff's consent when he knew or ought to have known that the invalid recommendation was likely to be relied upon by members of An Garda Síochána in dealing with the plaintiff. This invalid recommendation was then allegedly used by the plaintiff's estranged wife during the course of legal proceedings in support of her application for a barring order against the plaintiff which was granted and subsisted at the time of the drafting of the statement of claim.

7 The statement of claim also alleges that on 26th March, 2014 the plaintiff, while attending the St. Stephen's Green Hibernian Club at 9 St. Stephen's Green, Dublin 2 of which he was a member, was approached by a member of An Garda Síochána who arrested and detained him and conveyed him in custody to Pearse Street Garda Station in purported reliance on the Form 5 recommendation completed by the third named defendant as a result of which he was deprived of his liberty and falsely imprisoned. He was detained for a period of in excess of two hours and was only released following examination by another doctor who determined that he ought not to be detained under the Mental Health Act 2001.

8 It is also alleged in the statement of claim that An Garda Síochána sought to rely on their powers of detention pursuant to s. 12 of the 2001 Act as the basis for detaining the plaintiff notwithstanding the fact that he was never advised that he was being detained pursuant to that provision while at Pearse Street Garda Station and in the absence of any reasonable grounds for a belief that he was suffering from a mental disorder or that because of that mental disorder there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to others.

9 These proceedings were struck out by an order made on 16th February, 2016 (Reynolds J.) as the plaintiff had failed to obtain the leave of the court to issue the proceedings in accordance with s. 73 of the 2001 Act. The intended plaintiff now seeks leave to issue proceedings against the second, third, fourth, fifth, and sixth intended defendants based on the same alleged causes of action and facts as set out in the statement of claim delivered in the first proceedings. The first intended defendant was initially included in the relief sought. However, the motion insofar as it sought leave to initiate proceedings against him was struck out by consent on 21st June 2018.

Section 73

10 Section 73 of the 2001 Act provides:-

‘73(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 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.

…

(3) Where proceedings are, by leave granted in pursuance of subsection (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...