CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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 <Dr G> in failing to reply to <Dr B's> letter.   When the letter from <Dr B> was received there was no question, on the part of <Dr G>, 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 <Dr G> 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 <Dr B> 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 <Dr B> 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 <Dr B>, 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, <Dr G> would have been in neglect of his duty had he failed to make a reception order. ...   In relation to <Dr O'D>, 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 <Dr G>, 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 (<Dr G>) so thought fit and provided he was satisfied that the plaintiff would be properly taken care of.   As <Dr G> was so satisfied he discharged the plaintiff into the care of his brother. The fact that <Dr G> did so, as he was entitled to do, is not in my view indicative of want of reasonable care on the part of <Dr O'D> 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)