Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

PLENARY

Application No. 24196/94

Mary O'Reilly

against

Ireland

REPORT OF THE COMMISSION

(adopted on 3 December 1996)

TABLE OF CONTENTS

Page

INTRODUCTION ............................................. 1

PART I: STATEMENT OF THE FACTS ......................... 3

PART II: SOLUTION REACHED ............................... 4

INTRODUCTION

1. This report relates to the application introduced under

Article 25 of the European Convention on Human Rights by Mary O'Reilly

against Ireland on 23 March 1994. It was registered on 25 May 1994

under file No. 24196/94.

2. The applicant was represented before the Commission by

Lucy Collins, a solicitor practising in Limerick. The respondent

Government were represented by their Agent, Ms. Emer Kilcullen,

Department of Foreign Affairs.

3. On 22 January 1996, the Commission declared the application

admissible. It then proceeded to carry out its task under Article 28

para. 1 of the Convention which provides:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of the

parties concerned with a view to securing a friendly settlement

of the matter on the basis of respect for Human Rights as defined

in this Convention."

4. The Commission found that the parties had reached a friendly

settlement of the case and on 3 December 1996 adopted this report

which, in accordance with Article 28 para. 2 of the Convention, is

confined to a brief statement of the facts and of the solution reached.

5. The following members were present when the Report was adopted:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

PART I

STATEMENT OF THE FACTS

6. The applicant is an Irish citizen born in 1956 and is currently

resident in Limerick.

7. The applicant claims that on 12 December 1988 she had instructed

her solicitor to institute proceedings to obtain a barring order

against her husband due to alleged assaults by him. On the same day the

applicant's husband and father consulted with a doctor, expressed

concern about the applicant's behaviour and requested that doctor to

attend the family home that evening to examine the applicant with a

view to her involuntary committal to a psychiatric hospital under

section 184 of the Mental Health Act 1945. When the husband and the

doctor attended at the family home later that day, the applicant

reacted violently on seeing her husband at the door. The doctor, who

was standing 12 to 15 yards away from the door of the house, noted the

applicant's reaction and felt it confirmed the history already given

to him by the husband and father. The doctor took the view that it

would not be possible to interview the applicant and, therefore, he did

not speak to, physically examine or make his presence known to the

applicant.

8. Later that evening the applicant's husband signed the application

for the applicant's committal in the form prescribed by section 184 of

the 1945 Act. The doctor then certified, for the purposes of section

184, that he had "examined" the applicant and had formed the view that

she was suffering from mental illness requiring involuntary committal

on a temporary basis. Later that evening the applicant was conducted

to a psychiatric hospital where she was examined physically and

interviewed by a second doctor who noted certain bruising on the

applicant which the applicant explained was caused by marital violence.

The second doctor, before making her diagnosis, spoke on the telephone

with the first doctor and the consultant psychiatrist on duty. The

second doctor formed the opinion that the applicant might have been

suffering from mental illness and required detention to be assessed.

The applicant refused to voluntarily commit herself and thus the second

doctor signed a reception order thereby completing the procedure for

the applicant's involuntary detention in the psychiatric hospital for

a potential period of six months. On 15 December 1988 the applicant was

released as she was found not to be suffering from mental illness.

9. In order to take an action against the first doctor and the

Mid-Western Health Board (the second doctor's employer and the

proprietor of the hospital), the applicant had to apply to the High

Court for leave to institute proceedings and in such proceedings had

to demonstrate that she had "substantial grounds" for contending that

the proposed defendants had acted in bad faith or without reasonable

care.

The applicant's main argument in those proceedings was that the first

doctor did not "examine" her within the meaning of section 184 of the

1945 Act. On 7 June 1991 the High Court refused the applicant leave to

institute proceedings, finding that the examination of the applicant

by the second doctor showed the highest degree of care and that the

first doctor's examination was sufficient examination for the purposes

of section 184 of the 1945 Act. On 16 November 1993 the Supreme Court

rejected the applicant's appeal.

10. The applicant mainly complained that she was arbitrarily deprived

of her liberty (pointing mainly to the nature of the first doctor's

examination) and invoked Articles 5, 6, 8 and 13 of the Convention.

PART II

SOLUTION REACHED

11. Following its decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a view

to securing a friendly settlement in accordance with Article 28

para. 1 (b) of the Convention and invited the parties to submit any

proposals they wished to make.

12. In accordance with the usual practice, the Secretary, acting on

the Commission's instructions, contacted the parties to explore the

possibility of reaching a friendly settlement.

13. In April 1996 the applicant outlined in detail her terms of

settlement and in July and September 1996 the Government indicated to

the Commission that the parties were close to reaching a friendly

settlement.

14. Accordingly, on 18 May 1996 and 19 October 1996, when the

Commission considered the state of proceedings of the case, the

Commission decided to await the outcome of the friendly settlement

negotiations between the parties.

15. By letter dated 21 October 1996 the Government forwarded an

original of a document which was signed by both parties and which

recorded the settlement reached between the parties as follows:

"The parties have now reached the following friendly settlement

on the basis of respect for human rights as defined in the

European Convention on Human Rights in order to terminate the

proceedings before the Commission.

(a) A sum of £14,000.00 will be paid to Mary O'Reilly.

(b) A sum of £51,950.40 will also be paid to Mary O'Reilly in

respect of legal costs and expenses.

(c) Both parties will observe confidentiality subject to what is

published under Article 28 para. 2 of the European Convention on

Human Rights.

(d) Mary O'Reilly declares that she has no further claims in the

matter."

16. With reference to part (c) of the above settlement, the

Commission notes that its decision as to the admissibility of the

application is public and that that decision has also been published

(No. 24196/94, Dec. 22.1.96, D.R. 84-A p. 72).

17. At its session on 3 December 1996 the Commission found that the

parties had reached agreement regarding the terms of a settlement. It

further considered, having regard to Article 28 para. 1(b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for human rights as defined in the Convention.

18. For these reasons, the Commission adopted the present report.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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O'REILLY v. IRELAND

O'REILLY v. IRELAND