A.L. v Clinical Director of St. Patrick's Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 11 March 2010
• Neutral Citation: [2010] IEHC 62
• Court: High Court
• Docket Number: [2009 No. 246 MCA],246 MCA/2009
• Date: 11 March 2010

[2010] IEHC 62

THE HIGH COURT

246 MCA/2009

L (A) v Clinical Director of St. Patrick's Hospital & Mental Health Commission

IN THE MATTER OF S. 73 OF THE MENTAL HEALTH ACT 2001, AND

IN THE MATTER OF INTENDED PROCEEDINGS

BETWEEN

A. L.

INTENDED PLAINTIFF

AND

THE CLINICAL DIRECTOR OF ST. PATRICK'S HOSPITAL AND THE MENTAL HEALTH COMMISSION

INTENDED DEFENDANTS

MENTAL HEALTH ACT 2001 S73

MENTAL HEALTH ACT 2001 S73(1)

MENTAL TREATMENT ACT 1945 S260(1)

MENTAL TREATMENT ACT 1945 S260

MELLY v MORAN & NORTH WESTERN HEALTH BOARD UNREP SUPREME 28.5.1998 1998/26/10299

BLEHEIN v MIN FOR HEALTH & ORS 2009 1 IR 275 2008 2 ILRM 401 2008/3/594 2008 IESC 40

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S16

MENTAL HEALTH ACT 2001 S17

MENTAL HEALTH ACT 2001 S17(1)(C)

MENTAL HEALTH ACT 2001 S33(3)(B)

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S18(2)

MENTAL HEALTH ACT 2001 S18(4)

BAILEY v GALLAGHER 1996 2 ILRM 433 1996/1/56

MENTAL HEALTH

Proceedings

Leave - Unlawful detention - Duty of care - Application for leave to institute proceedings - Reasonable basis or grounds - Without reasonable care - Obligation to use care to ensure persons not in unlawful custody - Melly v Moran (Unrep, SC, 28/5/1998) applied; Blehein v Minister for Health [2008] IESC 40, [2009] 1 IR 275 distinguished - Mental Treatment Act 1945 (No 19), s 260 - Mental Health Act 2001 (No 25), ss14, 15, 16, 17 & 73 - Leave granted to bring proceedings against hospital (2009/246MCA - Clarke J - 11/3/2010) [2010] IEHC 62

L(A) v Clinical Director of St Patrick's Hospital & Anor

1 JUDGMENT of Mr. Justice Clarkedelivered the 11th of March, 2010

1. Introduction

2 2 1.1 The intended plaintiff ("Ms. L. ") has in recent years suffered from mental illness from time to time. At varying stages she has been both a voluntary and an involuntary patient, generally under the control of the first named defendant ("the Clinical Director"). In circumstances, which it will be necessary to outline further in the course of this judgment, it currently appears that during one period when Ms. L. was apparently an involuntary patient, the proper procedures necessary to justify her detention as such an involuntary patient had, in a very fundamental way, not been complied with.

3 3 1.2 It is in those circumstances that Ms. L. now wishes to bring proceedings for damages arising out of what she claims was her unlawful detention in thosecircumstances. Because of the provisions of s. 73 of the Mental Health Act 2001 ("the 2001 Act"), Ms. L. is not entitled to bring these proceedings without the leave of this Court. Ms. L. has sought such leave which was opposed by the Clinical Director, but consented to by the Mental Health Commission ("the Commission"). This judgment is directed towards the issues which arose on that application. In those circumstances, it is appropriate to turn first to the provisions of s. 73 of the 2001 Act.

2. Section 73

4 2 2.1 As pointed out earlier, proceedings such as those which Ms. L. wishes to bring cannot be instituted without leave of this Court. However, s. 73(1) of the 2001 Act provides that such leave shall not be refused unless this Court is satisfied:-

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

6 (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. "

7 3 2.2 Section 73 of the 2001 Act is, in some respects, similar to the former s. 260(1) of the Mental Treatment Act 1945 ("the 1945 Act"), which also provided that proceedings of the relevant type could not be instituted save by leave of this Court. However, s. 260(1) of the 1945 Act provided that such leave should "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".

8 4 2.3 It will immediately be seen that there are two significant differences between s. 73(1) of the 2001 Act and s. 260(1) of the 1945 Act. First, s. 73 of the 2001 Act reverses the onus of proof. Under s. 260 it was necessary for the person wishing to initiate proceedings to establish that there were substantial grounds for contending badfaith or lack of reasonable care. Under s. 73 the court is required to give leave unless the court is satisfied that the proceedings are frivolous, vexatious or that there are no reasonable grounds for asserting bad faith or lack of reasonable care.

9 5 2.4 Second, it is to be noted that, while s. 260 required the intending plaintiff to show substantial grounds for the contentions which underlie the intended proceedings, s. 73 contains no such requirement.

10 6 2.5 However, it seems to me that the jurisprudence of the courts in relation to s. 260 of the 1945 Act remain, potentially, of relevance in a consideration of s. 73 save where that jurisprudence is concerned with those aspects of the relevant sections which are materially different. In particular, the terms "bad faith or without reasonable care" appear in an identical form in both sections.

11 7 2.6 On that basis, it seems to me to be clear that the term "without reasonable care" should be interpreted as applying not just to an absence of proper medical care, but also as applying to an obligation to use care in ensuring that persons are not in unlawful custody. For example, in Melly v. Moran & Anor (Unreported, Supreme Court, O'Flaherty J., 28 ^th of May, 1998), the Supreme Court allowed an appeal from a decision of this Court, under s. 260 of the 1945 Act, refusing leave to bring proceedings. It is clear from the judgment of O'Flaherty J. that the Supreme Court was of the view that the facts of the case concerned disclosed a "prima facie want of reasonable care". The allegation in that case was described by O'Flaherty J. as being to the effect "that there was a want of reasonable care in the filling out of the form by the doctor and by the hospital authorities in accepting it as sufficient". For the purposes of the current discussion, the precise nature of the alleged want of care is not particularly relevant. However, it is clear that the Supreme Court were satisfied thatthere was a prima facie basis for alleging substantial grounds of want of care in the procedures relating to the detention of the plaintiff concerned.

12 8 2.7 Thus, at the level of principle, it seems clear that it is open to a plaintiff to seek to allege that there was a breach of duty of care on the part of a doctor or hospital arising out of the procedures, followed or not followed in the course of putting in place the necessary measures required to procure the detention of a patient. Any such want of care is, it seems to me, therefore, a type of want of care which came within s. 260 of the 1945 Act and also comes, at the level of principle, within s. 73 of the 2001 Act.

13 9 2.8 It is also worthy of some note that the Supreme Court, in Blehein v. The Minister for Health and Children & Ors [2008] I.E.S.C. 40, determined that s. 260 of the 1945 Act was inconsistent with the Constitution. The basis for that decision was the fact that s. 260 confined a plaintiff to proceedings arising out of a lack of bona fides or a want of reasonable care, which restriction was found by the Supreme Court to be disproportionate. The fact that a similar restriction is to be found in s. 73 must, at least, raise some questions about the constitutional validity of the identical restriction contained in s. 73. However, given that I am satisfied that the sort of claim which Ms. L. wishes to bring in these proceedings comes within the "want of reasonable care" parameters as specified in s. 73, it does not seem to me that the question of the application of the jurisprudence identified in Blehein to the 2001 Act arises on the facts of this case.

14 10 2.9 Finally, it should be noted that no suggestion is made in these proceedings that the proceedings are frivolous or vexatious. Neither is there any suggestion on the part of Ms. L. that either of the defendants acted in bad faith. Shorn of those aspects of s. 73, the question which I must ask myself is whether I am satisfied that there are noreasonable grounds for contending that either or both of the defendants acted without reasonable care. This is, of course, something of a double negative. I should grant leave unless I am satisfied of that matter. It follows that leave should be granted, save in cases where it has been demonstrated that there is no reasonable basis for the allegation that any relevant defendant acted without reasonable care. Where, therefore, there is any legitimate basis on which a court might arguably conclude that a relevant defendant had acted without reasonable care, then it follows that leave must be granted.

15 11 2.10 Having identified those general principles, it is next appropriate to turn to the specific facts on which Ms. L. wishes to base her case.

3. The Plaintiff's Case

16 2 3.1 Much of the factual basis for the case which Ms. L. wishes to bring does not appear, at this stage, to be in dispute....