Lexploria

The European Commission of Human Rights sitting in private on

3 December 1986, the following members being present:

MM. C. A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 January 1986 by

O'D. against Ireland and registered on 1 March 1983 under file

No. 10296/83;

Having regard

- to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

- to the observations of the Government dated 27 September 1985

and the applicant's observations in reply dated 7 January 1986.

_ further information submitted by the Government dated

17 July 1986 and the applicant's comments dated 5 August 1986;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, Mr. D., is a citizen of Ireland at present

residing in Dublin. He is a tool-maker by profession. He is

represented in proceedings before the Commission by Messrs. Gill

Traynor & Co., Solicitors, Mrs. M. Robinson, S.C., and

Miss M. O'Brian, of counsel.

In June 1980 the applicant was visited, at the request of his wife, by

Dr. G, a psychiatrist and Chief Medical Superintendent at St.

Columba's Hospital in Sligo. In Dr. G's opinion the applicant

displayed an abnormal hatred of his wife and was at that time

suffering from a severe paranoid personality disorder. The applicant

had serious marital difficulties with his wife, was occasionally

violent towards her, and on several occasions the police had been

called to his house. He claims that his wife, a registered nurse,

threatened to have him committed to hospital.

Following this examination he travelled to Dublin and was examined by

Dr. B., who was a general practitioner, on 10 June 1980. He informed

Dr. B. that he was told in Sligo that he needed treatment and that if

he did not take medicine he would be committed. Dr. B. found that

although he was anxious and worried, he did not appear to be psychotic

or in need of custodial treatment although in view of what he had been

told by doctors in Sligo, he considered that he might have suffered

from a schizophrenic or depressive state at isolated times in the

past. He saw him again on 11 and 14 June 1980 and 9 July 1980 and on

each occasion found him improved. He also wrote to Dr. G., seeking a

case summary and asked what treatment could be advised so that this

could be arranged in Dublin. It appears that Dr. G. omitted to reply

to the letter.

On 15 September 1980 the applicant went to the family home when a

violent row took place with his wife who claimed that he beat her and

threatened her life with the result that she had to leave home. The

police subsequently called at the home and removed a shotgun. On

19 September 1980 a heated argument took place between the applicant

and his wife which resulted in his being brought to the police station

in Sligo.

On the same day his wife applied to Dr. O'D., a general practitioner,

under Section 162 of the Mental Treatment Act 1945 for a

recommendation for the reception and detention of the applicant in a

mental hospital as a person of unsound mind. He was then examined by

Dr. O'D. who certified, in accordance with Section 163 of the 1945

Act, that the applicant was a person of unsound mind, was a proper

person to be taken charge of and detained under care, was unlikely to

recover within six months, and was not suitable for admission as a

voluntary patient.

Following the completion of the recommendation he was brought by the

police to St. Columba's Hospital where he was immediately examined by

a psychiatrist member of staff, Dr. O'H., and forcibly put to bed.

It appears that his attitude was hostile and violent and that he broke

a locker in his room. Dr. O'H. contacted Dr. G. who instructed her

to administer a sedative. Dr. G. subsequently saw the applicant

about three hours after his admission when he was sedated and calm. He

then made an order under Section 171* of the 1945 Act for the

detention of the applicant, certifying on the prescribed form that

having examined the applicant he was satisfied that he was a person of

unsound mind who ought to be detained.

_______________

* Section 171 is as follows: "Where a person is removed to a district

mental hospital in pursuance of a recommendation or reception, the

resident medical superintendent of the hospital or another medical

officer of the hospital acting on his behalf shall, on the arrival of

the person at the hospital and on presentation of the recommendation,

examine the person, and shall thereupon either - (a) if he is

satisfied that the person is a person of unsound mind and is a proper

person to be taken charge of and detained under care and treatment,

forthwith make in the prescribed form an order (in this Act referred

to as a chargeable patient reception order) for the reception and

detention of the person as a person of unsound mind in the hospital,

or (b) in any other case, refuse to make such order".

_______________

On 21 September 1980 the applicant was granted a conditional order of

habeas corpus by Mr. Justice Barrington of the High Court who

directed the North Western Health Board to bring the applicant before

the court and certify in writing the grounds for his detention.

However these proceedings came to an end when, on 24 September 1980,

Dr. G., being satisfied that he had recovered sufficiently to permit

his release, discharged him into the care of his brother who had

applied for his discharge under Section 220 of the 1945 Act.

The applicant then sought to initiate proceedings against inter alia

the North Western Health Board for damages for assault, battery and

false imprisonment arising out of his compulsory detention.

Under Section 260* of the 1945 Act such proceedings could only be

commenced if leave was granted by the High Court and such leave is not

to be granted unless the 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.

_______________

* Section 260 provides as follows:

"260 (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 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. (3) Where proceedings are, by

leave granted in pursuance of sub- section (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 satisfied that the defendant

acted in bad faith or without reasonable care."

_______________

Leave to bring the proceedings against the Health Board was granted on

8 December 1980 by Mr. Justice Costello of the High Court who stated

that he could not regard the intended action as frivolous or

misguided. However an appeal by the Health Board to the Supreme Court

was heard on 25 March 1982 and on 16 July 1982 a majority of the court

(O'Higgins C.J. and Griffin J.) found that there were no substantial

grounds for the allegation that the doctors involved (Drs. G. and

O'D.) acted without reasonable care. The Court did not consider that

either the failure of Dr. G. to reply to Dr. B.'s request for a case

history or the fact that the applicant was discharged after six days

constituted substantial evidence of a lack of reasonable care on the

part of the doctors. In this regard Mr. Justice Griffin stated as

follows:

"In my view, there was no want of reasonable care on the part of

in failing to reply to letter. When the letter from

was received there was no question, on the part of , of

exercising any statutory functions in respect of a detention order. In

any event, the failure to reply was undoubtedly due to the unfortunate

circumstances in which the letter was received in Sligo after

had gone on holidays and to the sending of the letter to his private

home while he was away. In relation to his failure to communicate

with at the time of the making of the reception order, any such

communication would have been in my view of little or no assistance,

as the events which had occurred between the 15th and 19th of

September had overtaken whatever opinion might have formed some

three months earlier. In the light of the circumstances then

existing, far from being guilty of want of reasonable care in failing

to communicate with , it seems to me that having regard to the

facts then known to him, including the prudent removal from the house

by the Gardai of the shotgun, and having regard to his own medical

opinion, would have been in neglect of his duty had he failed

to make a reception order. ...

In relation to , having regard to the facts as known to him

when he made the recommendation for reception, to his examination of

the plaintiff, to his earlier examination in June, and to what by any

standard was abnormal behaviour on the part of the plaintiff,

(Dr O'D's> opinion that the plaintiff was unlikely to recover within

six months was justifiable. Pursuant to S. 220 , as the person

in charge of the hospital, and he alone, was entitled to discharge the

plaintiff into the care of his brother on the application of the

latter, if he () so thought fit and provided he was satisfied

that the plaintiff would be properly taken care of. As was so

satisfied he discharged the plaintiff into the care of his brother.

The fact that did so, as he was entitled to do, is not in my

view indicative of want of reasonable care on the part of in

making his recommendation for reception and in giving his opinion that

the plaintiff was unlikely to recover within six months."

In a dissenting opinion Mr. Justice Henchy found that Dr. G. had not

complied with the statutory requirement in Section 171 (1) that he

should examine the applicant on his arrival at the hospital prior to

his making the reception order. This had been carried out by another

psychiatrist (Dr. O'H.) who was therefore the only person qualified

to make the reception and detention order. The certification on the

prescribed form should have been duly completed before the applicant

was forcibly received and detained in the hospital and not some three

hours later when the applicant was sedated.

He noted that Dr. G.'s affidavit stated that he "saw" him on the

evening of 19 September 1980. It did not state that any conversation

was held or that he made a diagnosis of any specific form of mental

illness. He had formed his opinion on the basis of his examination of

the applicant three months previously and on the basis of the

information concerning his behaviour before and after his admission to

hospital.

Mr. Justice Henchy also found that Dr. G. had failed to inform the

applicant , as he was required to do under the procedures set out in

the prescribed form, that he could obtain in-patient treatment on a

voluntary basis. In conclusion he expressed the opinion that the

applicant had been forcibly detained as a person of unsound mind prior

to the due execution of the statutory instrument which was an

indispensable preliminary to such deprivation of liberty.

Mr. Justice Griffin was satisfied that Dr. G. had "examined" the

applicant as required by S. 171 and that this was what he meant when

he stated in his affidavit that he "saw" the applicant. Chief Justice

O'Higgins concluded that there were no substantial grounds for the

claim that either of the doctors acted without reasonable care.

Legal costs for both the proceedings before the High Court and the

Supreme Court were awarded against the applicant.

COMPLAINTS

The applicant originally complained under Article 5 para. 1 (Art. 5-1)

and para. 5 (Art. 5-5), Article 6 (Art. 6) and Article 8(Art. 8). The

Commission rejected the applicant's complaints under Article 5

(Art. 5) as well as part of his complaint under Article 8 (Art. 8)

concerning his detention in a Partial Decision dated 14 May 1984. It

further decided to adjourn its examination of the applicant's

remaining complaints under Articles 6 (Art. 6) and 8 (Art. 8) pending

the judgment of the European Court of Human Rights in the Ashingdane

case.

The applicant's remaining complaints under Article 6 (Art. 6) and 8

(Art. 8) can be summarised as follows:

Article 6 (Art. 6)

He complains that he has been denied access to the Irish courts to

determine whether in the circumstances his detention was unlawful

entitling him to the relief of damages for false imprisonment.

The issue before the Supreme Court was a question of whether the High

Court had been correct in law in granting leave to issue proceedings

under Section 260 of the 1945 Act. The notice of motion had been

grounded on the affidavit of the applicant and a replying affidavit

was filed by Dr. G. There was a conflict between the affidavits but

as this was a preliminary issue no oral evidence was called in the

High Court. Nevertheless, three members of the Supreme Court in their

judgments did draw inferences and make conclusions as to fact. It is

submitted that the circumstances surrounding the applicant's detention

give rise to a prima facie case entitling him to institute proceedings

seeking compensation against the hospital authorities. However, he

has been denied the leave to institute such proceedings and has

therefore been denied the opportunity to call his evidence,

cross-examine witnesses and to look for discovery of documents and

other procedures ancillary to a full trial on the merits. As a

consequence he has had no proper determination of the legality of his

detention from 19 to 24 September 1980.

Article 8 (Art. 8)

He complains that the refusal of the Supreme Court to permit him to

institute civil proceedings denied him the protection of his private

and family life by permitting his wife to carry out her threat to have

him committed to a psychiatric hospital.

PROCEEDINGS

The application was introduced on 10 January 1983 and registered on

1 March 1983. The Commission examined the admissibility of the

application on 14 May 1984 and decided to reject as inadmissible the

applicant's complaints under Articles 5 (Art. 5) and 8 (Art. 8)

concerning his alleged unlawful detention.

The Commission further decided that, in accordance with Rule 42 para.

2 (b) of the Rules of Procedure, the Government should be invited to

submit, within a period of ten weeks from the date of the decision of

the European Court of Human Rights in the Ashingdane case, its

observations on the admissiblity and merits of the remaining issues

under Article 6 para. 1 (Art. 6-1) and Article 8 para. 1 (Art. 8-1).

The Government's observations were received on 27 September 1985 and

the applicant's observations in reply were submitted on

7 January 1986.

The Commission again examined the application on 17 July 1986 and

decided to request more specific information from the applicant

concerning the exhaustion of domestic remedies. This information was

received on 5 August 1986. The Government's comments in reply were

received on 26 September 1986.

SUBMISSIONS OF THE PARTIES

Respondent Government

Exhaustion of domestic remedies

In the course of the proceedings taken by the applicant, no ruling was

sought from the Court as to the compatibility of Section 260 with the

constitutional right of access to the courts. The Irish superior

courts have power to set aside such words of the law as are repugnant

to the constitution. This is a most effective remedy against the

application of such law and the remedy which ought to have been

exhausted at the domestic level.

If, at the time of his High Court proceedings in 1980, the applicant

wished to challenge the validity of Section 260 by reference to his

constitutional right of access to the courts, he ought to have

complied with Order 60 Rule 1 of the Superior Court Rules which

requires a litigant to serve notice in advance on the Attorney-General

of any question as to the validity of a law arising in the course of

the proceedings.

In such a situation the Attorney-General is entitled to appear in the

action and become a party as regards any question concerning the

validity of a law (Order 60 Rule 3).

In the present case it cannot suffice for the applicant to argue that

he did not seek to have the section struck down by the courts as being

repugnant to his constitutional right of access to the courts, but

that nonetheless some reference to relevant case law was made in the

course of oral submissions to the courts. In this respect reference

is made to In re Philip Clark 85 I.L.T.R. 119 where the applicant

challenged the constitutionality of Section 165 of the 1945 Act in the

context of a hearing of an application for habeas corpus.

It is submitted, therefore, that the applicant has not exhausted the

domestic remedies at his disposal.

Article 6 para. 1 (Art. 6-1)

Fourth instance

In the alternative, the Commission is not a court of appeal from the

application by the Supreme Court of Section 260 on the facts of the

case before it. It is not the role of the Commission to substitute

its opinion for that of national courts concerning the interpretation

of national law or questions of fact.

Incompatible ratione materiae

It is further submitted that there is no dispute concerning a civil

right and thus Article 6 (Art. 6) is not applicable in the present

case.

The civil proceedings contemplated by the applicant could not have

been decisive for his civil right to liberty since he was already at

liberty.

The applicant seeks to show that Dr. G. showed a want of care when he

formed his professional opinion that the applicant should be detained.

Having failed to show "substantial grounds" for this contention, the

applicant nonetheless wishes to have a further hearing on the issue.

The Government submit that this issue is only tenuously or remotely

connected with the applicant's right not to be deprived of his liberty

save in accordance with the law.

Manifestly ill-founded

The Government refer to the decision of the Court in the Ashingdane

case (Eur. Court H.R. judgment of 28 May 1985, Series A No. 93). The

Court stated that the right of access to the courts guaranteed by

Article 6 (Art. 6) is not absolute but may be subject to implied

limitations. A limitation will be compatible with Article 6 para. 1

(Art. 6-1) if it pursues a legitimate aim and if there is a reasonable

relationship of proportionality between the means employed and the aim

sought to be achieved. The Court noted that the aim of a directly

comparable provision of English law was to protect those responsible

for the care of mental patients from being unfairly harassed by

litigation.

In the present case the legitimate object of Section 260(1) would be

undermined if an individual would bring a civil action for damages

without having to show substantial grounds for want of due care or bad

faith. The hospital staff could be compelled by subpoena to attend

the court and defend their actions, albeit in the capacity of

witnesses rather than defendants. The means employed by the Irish

authorities to avoid such undue harassment involved a careful

examination by the highest court in Ireland of each of the applicant's

contentions.

It is further submitted that the mere fact that the applicant seeks to

attach primary responsibility to the employer of Dr. G. (The North

Western Health Board) does not upset the reasonable relationship of

proportionality which exists between the aim sought to be achieved by

Section 260(1) and its application to the facts of this case.

In addition, it is submitted that the essence of the applicant's right

to a court was not impaired since he obtained a hearing in the High

Court and in the Supreme Court. He was required to discharge a

certain onus of proof at an earlier stage than is the case in the

generality of proceedings for the reasons set out above. It was

because he failed to discharge that onus of proof that he was not

entitled to a further hearing. In this connection, the Commission is

invited to examine the full judgments given by each member of the

Supreme Court which evidence the careful consideration given to the

applicant's contentions.

Article 8 para. 1 (Art. 8-1)

This provision cannot reasonably be given such a wide interpretation

as to prevent the detention in accordance with the law of a person

certified to be of unsound mind merely because it was his wife who

brought the matter to the attention of the medical authorities. Nor

can it be interpreted as requiring the Government to provide easier

access to the courts for a married man wishing to sue the medical

authorities because he had been detained pursuant to an application by

his wife than it would provide for a single person detained in

different circumstances.

The applicant

Exhaustion of domestic remedies

The applicant accepts that the right of access to courts has evolved

as a constitutional right in Ireland. He had argued before the courts

that Section 260 of the 1945 Act ought to be interpreted in accordance

with the constitutional right of access to the courts. This submission

was, in fact, accepted by Mr. Justice Costello in his judgment of

8 December 1980. He stated as follows:

"I accept Mrs. Robinson's contention that I must interpret the

Section in the light of the guarantee given in the Constitution to

citizens of access to the courts under Article 40.3. It is in this

light that I must consider the wording of Section 260. An action

should be allowed to be commenced without prejudicing in any way the

right of an individual to litigate before the courts."

The applicant submits that it was sufficient to argue that Section 260

of the 1945 Act was to be interpreted in accordance with the

constitutional right of access to the courts. It is not the wording

of the Section itself, but the circumstances and manner in which that

Section was actually applied to the applicant which is primarily at

issue. As the Court has indicated in the Ashingdane Case, its task

"in assessing the permissibility of the limitation imposed is not to

review Section 141 of the 1959 Act as such, but the circumstances and

manner in which that Section was actually applied to Mr. Ashingdane"

(loc. cit. para.59).

Article 6 para. 1 (Art. 6-1)

The applicant submits that the Ashingdane case can be distinguished on

its facts from the circumstances of the application. He draws the

Commission's attention to the following distinctions:

- Mr. Ashingdane's claim was for a breach of statutory duty

which was the duty imposed on the Secretary of State providing

hospital accommodation to meet all reasonable requirements. The court

did not find it necessary to decide whether the imposition of such

duty conferred a right on the individual citizen. In the present

application the applicant claims that the very essence of his right to

a court has been impaired.

- In the Ashingdane case there was no allegation of either bad

faith or negligence, whereas the applicant claims that the responsible

authorities acted without reasonable care.

- In the present case a High Court judge was satisfied that

there were substantial grounds for the contention that there had been

a lack of reasonable care on the part of the hospital authorities and

one of the three judges of the Supreme Court was equally satisfied.

The limitation contained in Section 260 of the 1945 Act as applied to

the applicant in this case did impair the very essence of his right to

a court in the sense described in the Ashingdane case (loc. cit.,

para. 57). The burden of proof placed on him at the preliminary stage

amounted to an effective denial of access to court to vindicate his

civil rights. As such the interpretation and application of the

Section went beyond the pursuit of the legitimate aim of the

legislation and infringed the principle of proportionality.

Article 8 para. 1 (Art. 8-1)

The applicant submits that there is a direct link between the marital

problems which he was having with his wife - a qualified nurse who

threatened on several occasions that she could have him committed to a

mental hospital - and the lack of care which he claims surrounded the

circumstances of his committal.

The Supreme Court's refusal to permit him to institute civil

proceedings against the hospital authorities has affected him in his

private and family life since part of the relief which he sought in

those proceedings was an order to remove from the record of the

hospital any mention of his detention under Section 171 of the 1945

Act.

That record of compulsory detention in St. Columba's Psychiatric

Hospital still stands and could be invoked in any matrimonial

proceedings against the applicant. Furthermore, that record is

prejudicial to the applicant in his relationship with other family

members and to his standing in the local community.

THE LAW

The applicant complains that the effect of the refusal of leave to

institute proceedings under Section 260 of the Mental Treatment Act

1945 was to deny him access to the courts to determine his claim for

damages for assault, battery and false imprisonment. In this respect

he alleges a breach of Article 6 para. 1 (Art. 6-1) of the Convention.

He further submits that it also constitutes a breach of Article 8

para. 1 (Art. 8-1) of the Convention in that he was unable to protect

himself against a decision of his wife to have him committed to a

mental hospital.

The Commission finds that it is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of the above provisions as, under Article 26 (Art. 26) of

the Convention, it may only deal with a matter after all domestic

remedies have been exhausted according to the generally recognised

rules of international law.

The Commission notes that it has previously held that in order to

comply with the requirements of Article 26 (Art. 26) an applicant is

obliged to make "normal use" of remedies "likely to be effective and

adequate" to remedy the matters of which he complains (see e.g.

Donnelly and Others v. the United Kingdom, Nos. 5577-5583/72,

Dec. 15.12.75, D.R. 4 p. 64).

In the present case it is not in dispute between the parties that the

applicant submitted before the courts that the question of leave under

Section 260 of the 1945 Act should be decided against the background

of the constitutionally protected right of access to the courts under

Article 40.3. However, the applicant did not directly challenge the

constitutionality of Section 260 which might have afforded redress in

respect of his complaint by serving notice upon the Attorney-General,

as required by Order 60 Rule 1 of the Rules of the Superior Courts,

and raising the issue in his proceedings for leave.

The Commission, therefore, does not consider that the applicant has

exhausted the remedies available to him under Irish law. Moreover, an

examination of the case does not disclose the existence of any special

circumstances which might have absolved him, according to the

generally recognised rules of international law, from exhausting the

domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and his remaining complaints

must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

Menu

DÜMCKE (LIPIEC) v. GERMANY

DÜMCKE (LIPIEC) v. GERMANY

LEXI