P (M) v Health Service Executive (HSE) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 27 April 2010
• Neutral Citation: [2010] IEHC 161
• Court: High Court
• Date: 27 April 2010

[2010] IEHC 161

THE HIGH COURT

[3538 P/2009]

[69 IA/2009]

P (M) v Health Service Executive (HSE) & Ors

IN THE MATTER OF PROCEEDINGS ENTITLED

AND

IN MATTER OF PROCEEDINGS ENTITLED

BETWEEN

M.P.

APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND SHEILA CASEY

DEFENDANTS

MENTAL HEALTH ACT 2001 S73

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S15

L (A) v CLINICAL DIRECTOR OF ST PATRICKS HOSPITAL & MENTAL HEALTH CMSN UNREP CLARKE 11.3.2010 2010 IEHC 62

MENTAL HEALTH ACT 2001 S16(2)

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S49(6)(J)

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S3(1)(B)(ii)

MENTAL HEALTH ACT 2001 S9(1)

RSC O.137 r4(B)

RSC O.137

CHILD CARE ACT 1991

MENTAL TREATMENT ACT 1945 S260

MURPHY v GREENE 1990 2 IR 566 1991 ILRM 404 1991 ILT 146 1990/10/2793

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

WUNDER v HOSPITALS TRUST (1940) LTD UNREP SUPREME 24.1.1967

WUNDER v HOSPITALS TRUST (1940) LTD UNREP SUPREME 22.2.1972

HEANEY & MCGUINNESS v IRELAND & AG 1994 3 IR 593 1994 2 ILRM 420 1994/10/3029B

MENTAL HEALTH ACT 2001 S73(1)(A)

MENTAL HEALTH ACT 2001 S73(1)(B)

BULA HOLDINGS & ORS v ROCHE & ORS UNREP EDWARDS 6.5.2008 2008/5/773 2008 IEHC 208

ADAM & ORS v MIN FOR JUSTICE & ORS 2001 3 IR 53 2001 2 ILRM 452 2001/1/7

FAY v TEGRAL PIPES LTD & ORS 2005 2 IR 261 2005/25/5119 2005 IESC 34

RIORDAN v AN TAOISEACH & ORS (NO 5) 2001 4 IR 463 2001/21/5691

RIORDAN v HAMILTON & ORS UNREP SUPREME 9.10.2002 2002/24/6127

RIORDAN v GOVT OF IRELAND & ORS UNREP SMYTH 6.10.2006 2006/50/10644 2006 IEHC 312

MCSORLEY v O'MAHONY UNREP COSTELLO 6.11.1996 1997/5/1636

MENTAL HEALTH

Detention

Proceedings - Issued without leave - Frivolous and vexatious - Bad faith or without reasonable cause - Proportionality - Further application for leave of High Court to institute civil proceedings issued - Whether proportionate to grant leave - L(A) v Clinical Director of St Patrick's Hospital [2010] IEHC 62, (Unrep, Clarke J, 11/3/2010) approved; Murphy v Greene [1990] 2 IR 566; Blehein v Minister for Health and Children [2008] IESC 40, [2009] 1 IR 275, Wunder v Hospitals Trust (1940) Ltd (Unrep, SC, 24/1/1967 and 22/2/1972), Adams v Minister for Justice, Equality and Law Reform [2001] 3 IR 53 applied, Fay v Tegral Pipes Ltd [2005] IESC 34, [2005] 2 IR 261 and Riordan v Hamilton (Unrep, SC, 9/10/2002) applied - Heaney v Ireland [1994] 3 IR 593, Riordan v Ireland (No 5) [2001] 4 IR 463, Bula Holdings v Roche [2008] IEHC 208, (Unrep, Edwards, 6/5/2008) approved, Riordan v Government of Ireland [2006] IEHC, 312, (Unrep, Smyth J, 6/10/2006) and McSorley v O'Mahony (Unrep, Costello J, 6/11/1996) approved - Mental Health Act 2001 (No 25), ss 3, 9, 10, 12, 14, 15, 16, 18, 49 & 73 - Rules of Superior Courts 1986 (SI 15/1986) O 137 r 4(b) - Leave refused (2009/3538P; 2009/69IA - MacMenamin J - 27/4/2010) [2010] IEHC 161

P(M) v Health Service Executive

1 JUDGMENT of Mr. Justice John MacMenamin delivered the 27th day of April, 2010

2 1. Sections 73 of the Mental Health Act, 2001 provides:-

3 2 "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:

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

5 (b) that there are reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

6 (2) Notice of an application for leave of the High Court under subs. (1) shall be given to the person against whom it is proposed to institute the proceedings and such person shall be entitled to be heard against the application.

7 (3) Where proceedings are, by leave granted in pursuance of subs. (1) of this section, instituted in respect of an act purporting to have been in pursuance of this Act, the Court shall not determine the proceedings in favour of the applicant unless it is satisfied that the defendant acted in bad faith or without reasonable care".

The applicant's motion

8 2. Ms. P. (whom I will refer to also as "the applicant") was born in Sierra Leone. By way of notice of motion dated 6 ^th January 2010, she seeks leave to initiate proceedings against the defendants ("the respondents") in accordance with s. 73 of the Act of 2001. She and members of her family experienced considerable misfortune and tragedy there. She came to this country in or about the year 2000. She is described in the proceedings as being a media-psychologist. While she presented her case without the assistance of a solicitor or counsel, she is a highly intelligent and fluent person, very well capable of presenting an account of events, as she perceived them.

9 3. The applicant in fact commenced one set of proceedings against the defendants on the 14 ^th April, 2009. As these were issued without leave, they were struck out by order of this Court on 9 ^th November 2009. She now seeks again to initiate these issues in a second set of pleadings. In both applications she made a wide variety of very unusual and far ranging claims arising from her interaction with the defendants, or their servants or agents. A number, if not all of the allegations, are phrased in very broad and extreme terms. She makes assertions against a number of public officials including those involved in her treatment pursuant to the Act of 2001. She was diagnosed as having a psychiatric paranoid condition and received involuntary treatment in Cavan General Hospital Psychiatric In-Patients Unit between the 3 ^rd February and the 13 ^th March, 2009 during which time her detention was monitored by the Mental Health Tribunal. She seeks to initiate claims inter alia in regard to the treatment she received then, and with regard to other matters.

10 4. During much of the material time to the questions here the applicant lived in County Cavan. She has now returned to live in Dublin.

The defendants' motions

11 5. As well as being respondents to the applicant's notice of motion, the defendants bring application to have the intended proceedings dismissed as being frivolous and vexatious and or an abuse of process. The matters raised by the defendants in those motions are also relied on by the respondents in resisting the applicant's application for liberty to issue her proceedings pursuant to s. 73 of the Act of 2001.

The applicant's affidavit

12 6. The applicant's affidavit consists to a large degree of a reiteration of her complaints. It is valuable in that way. For a description of the sequence of events the main focus should in the first instance be on what is deposed to by or on behalf of the defendant. This is not to make any value judgment. It is simply that the chronology is set out more fully there.

The affidavit of Dr. Sheila Casey

13 7. The first affidavit in time is that of Dr. Sheila Casey, a general practitioner. Dr. Casey describes first coming into contact with the applicant at her walk-in clinic on 3 ^rd November 2008 in Kingscourt, County Cavan. She said she was informed by the applicant that her young child was in voluntary care. She needed to attend a general practitioner so as to provide voluntary weekly urine tests to exclude the possibility of cocaine and cannabis use. She was also required to have her drug regime supervised by a home based team so as to obtain access to her daughter. Such conditions had been imposed by the District Court in proceedings relating to her child. Dr. Casey said that the applicant informed her that whilst she was living with friends in Cavan town, she had been a patient of Dr. Darragh Hume, a general practitioner, and had also attended a Dr. E. Moloney, consultant psychiatrist.

14 8. The applicant attended Dr. Casey on a number of occasions. The doctor said she made efforts to ensure she would have supervision for her mental health condition through the home base team in Kingscourt. This was led by the psychiatric services and Dr. Vincent Russell, consultant psychiatrist. At the applicant's request, she also endeavoured to refer her to another psychiatrist of her choice based in Dublin. Dr. Casey states that these efforts did not prove successful as her patient would not respond to telephone calls left by the community psychiatric nurse.

15 9. Until November 2008, the applicant's urine tests were negative. Dr. Casey says she always passed this information on to social workers. A number of claims were made by Ms. P. that she did not pass on these tests results. These the doctor denies entirely.

The applicant's complaints regarding text messages

16 10. In an affidavit actually sworn on 23 ^rd September 2009, three months prior to the date of her motion, the applicant complained that she brought her mobile phone to Dr. Casey, that it contained text messages concerning her private life which were of a "life threatening" nature but the doctor ignored those messages. She alleges that Dr. Casey asked her intrusively each week about her new neighbours; was aware of the involvement of neighbours misconduct or harassment towards the applicant and did nothing to stop this or other interventions of the defendants so as to enable her to nurture her daughter who is in care with foster parents. The applicant claims that social workers, who are not identified, later said that Dr. Casey did not tell them about the negative urine tests. There is no corroboration of this. The applicant claims Dr. Casey prescribed psycho-active drugs which were detrimental to the care of her child.

Dr. Casey's responses

17 11. In response, Dr. Casey points out...