CEDH · CASELAW;REPORTS;ENG — 3 décembre 1996

.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 }                        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