Re Philip Clarke

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1951
Date01 January 1951
Docket Number(1949. No. 17. S.S.)

High Court

Supreme Court

(1949. No. 17. S.S.)
In re Philip Clarke.
In the Matter of PHILIP CLARKE and In the Matter of the Courts of Justice Act, 1924 and In the Matter of the Constitution (1)

Constitution - Liberty of the person - Act passed by Oireachtas - Validity - Provision for arrest and detention of persons believed to be of unsound mind - Whether provision repugnant to Constitution - Application for reception in mental hospital of person believed to be of unsound mind - Procedure - Statement of Particulars - Whether compliance with Statutory regulations obligatory - Intention of Legislature - The Constitution, Preamble; Article40 - Mental Treatment Act, 1945 (No. 19 of 1945), s. 165, sub-ss. 1 and2 - Mental Treatment (Regulations) Order, 1946 (Stat. R. & Or., 1946,No. 202), Art. 12; Sch., Form No. 8.

Habeas Corpus.

Application to make absolute, notwithstanding cause shown, a conditional order of habeas corpus ad subjiciendum,dated the 25th July, 1949, directed to Dr. John Dunne, Chief Resident Medical Superintendent of Grangegorman Mental Hospital, Dublin, to have before the Court the body of Philip Clarke.

On the 6th July, 1949, William Melly, a member of Garda Síochána, took the prosecutor, Philip Clarke, into custody and removed him to a Garda Síochána Station in

purported pursuance of his powers under s. 165 of the Mental Treatment Act, 1945. Later on the same day the prosecutor was examined by Dr. John F. Falvey, the authorised medical officer, who made a recommendation for the reception and detention of the prosecutor in Grangegorman Mental Hospital and, subsequently, the prosecutor was examined by an Assistant Medical Officer of the Hospital who thereupon made a recommendation for his reception in the Hospital as a person of unsound mind. The prosecutor was accordingly received into, and was still detained in, the Hospital. In making application to the authorised medical officer for a recommendation for reception of the prosecutor under s. 165 of the Mental Treatment Act, 1945, Guard Melly furnished the Statement of Particulars required by art. 12 of the Mental Treatment (Regulations) Order, 1946, but omitted to furnish the particulars required at nos. 9 to 16, inclusive, 18, 19 and 22 of the prescribed form. On the 25th July, 1949, a conditional order of habeas corpus was granted to the prosecutor by Gavan Duffy P. On the application to make absolute the conditional order, the prosecutor claimed that the furnishing of the said particulars was mandatory and that, as the statutory procedure for the reception of patients in a mental hospital had not been complied with, he was not being detained in accordance with law. On the hearing of the application before the High Court (Dixon J.) on the 10th August, 1949, the prosecutor further contended that the relevant provisions of Part XIV of the Mental Treatment Act, 1945, were repugnant to the provisions of the Constitution.

Sect. 165, sub-s. 1, of the Mental Treatment Act, 1945, provides that where a member of the Garda Síochána is of opinion that it is necessary that a person believed to be of unsound mind should, for the public safety or the safety of the person himself, be placed forthwith under care and control, he may take such person into custody and remove him to a Garda Síochána station.

Sub-sect. 2 of s. 165 provides that where a member of the Garda Síochána removes a person under the section he shall apply forthwith, in the prescribed form, to the authorised medical officer for a recommendation for the reception and detention of the person as a person of unsound mind in the appropriate district mental hospital.

On the 6th July, 1949, the prosecutor was taken into custody and removed to a Garda Síochána station by a member of the Garda Síochána who purported to act in pursuance of the provisions of the said s. 165. On the same day the authorised medical officer, on the application of the Guard, made a recommendation for his reception and detention in Grangegorman Mental Hospital, and he was then received and detained in the Hospital. The said application of the Guard was accompanied by a Statement of Particulars on Form No. 8 of the schedule to the Mental Treatment (Regulations) Order, 1946; but a number of the particulars, relating mainly to the mental history of the prosecutor, were omitted. The prosecutor obtained a conditional order of habeas corpus, directed to the medical superintendent of the Hospital and, on the application to make absolute the said conditional order it was

Held by the Supreme Court (affirming the High Court) that the provisions of s. 165 of the Act of 1945 are not repugnant to the Constitution as infringing the personal rights of the citizens.

Held further by the Supreme Court that the furnishing of the particulars required by Form 8 of the Regulations is a directory, and not an obligatory, requirement.

Dixon J. :—

It appears to me that in this case the procedure laid down by the Mental Treatment Act, 1945, was followed, that the applicant is lawfully detained in accordance with the provisions of that Act, and that I should allow the cause shown against making absolute the conditional order of habeas corpus so far as this aspect of the matter is concerned.

The applicant, however, contends that the material provisions of the Mental Treatment Act are repugnant to the Constitution. I cannot decide this question in the absence of the Attorney General, and accordingly the matter will be adjourned to enable notice to be served on the Attorney General, if the applicant is so advised. Strictly, such notice should have been served prior to the hearing but, as the liberty of the individual is involved, I feel I should give this further opportunity for serving notice.

I will adjourn the further hearing to the 24th of this month, and place it in the list for that day, "to be mentioned."

On the 9th September, 1949, the case came on for hearing before the High Court (Gavan Duffy P., Davitt and Dixon JJ.).

Gavan Duffy P. :—

This Court has sat specially in vacation to consider so much of the prosecutor's claim as asserts that he is detained in Grangegorman Mental Hospital under an unconstitutional enactment. Mr. Micks, for the prosecutor, attacks in particular s. 165 of the Mental Treatment...

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48 cases
  • Blehein v Minister for Health Children
    • Ireland
    • Supreme Court
    • 31 July 2018
    ...pursue - under the provisions of the now invalidated section 260. Finally, he further submits that the decision in In Re Philip Clarke [1950] I.R. 235 violates his constitutional rights and therefore should be both vacated and reversed. In reality, however, and despite how these grounds ar......
  • S (v T) v Health Service Executive & Mercy University Hospital Ltd
    • Ireland
    • High Court
    • 11 February 2009
    ...(2001) [2005] 3 IR 617, JB v Mental Health (Criminal Law) Review Board [2007] IEHC 147, (Unrep, Hanna J, 25/7/2008), Re Philip Clarke [1950] IR 235, Osheku v Ireland [1986] IR 733, Laurentiu v Minister for Justice [1999] 4 IR 42, Minister for Justice v Butenas [2008] IESC 9, [2008] 4 IR 189......
  • Ms F v Mental Health Tribunal
    • Ireland
    • High Court
    • 8 November 2016
    ...of Art. 5(1); here no like breach of domestic legislation presents. 18 The court notes: (i) the observation of the Supreme Court in In re Philip Clark [1950] I.R. 235 concerning the Mental Treatment Act 1945, the forerunner of the Act of 2001, that the Act of 1945 was ' designed for the pr......
  • M.X. v Health Service Executive
    • Ireland
    • High Court
    • 23 November 2012
    ...(App No 10533/83), (1992) 15 EHRR 437; In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79; In re Philip Clarke [1950] IR 235; J McD v PL [2009] IESC 81; [2010] 2 IR 199; Kiss v Hungary (App No 38832/06) (Unrep, ECHR, 20/5/2010); Lesoochranárske zoskupenie VLK v Min......
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