O'REILLY v. IRELAND



                      AS TO THE ADMISSIBILITY OF

                       Application No. 24196/94

                       by Mary O'REILLY

                       against Ireland

     The European Commission of Human Rights sitting in private on

22 January 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 G. JÖRUNDSSON

                 A. WEITZEL

                 J.-C. SOYER

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

           Mr.   M. de SALVIA, Deputy Secretary to the Commission

     Having regard to:

-    Article 25 of the Convention for the Protection of Human Rights

     and Fundamental Freedoms;

-    the application introduced on 23 March 1994 by Mary O'Reilly

     against Ireland and registered on 25 May 1994 under file No.

     24196/94;

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     2 February 1995 and the observations in reply submitted by the

     applicant on 3 March 1995;

-    the further observations of the Government dated 8 January 1996;

-    the parties' oral submissions at the hearing on 22 January 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Irish national and was born in 1956. She

married in or around 1978, has four children and currently resides in

Limerick. She is represented before the Commission by Lucy Collins, a

solicitor practising in Limerick. The application concerns the

applicant's detention in a psychiatric institution pursuant to the

application of her husband and the facts as submitted by the parties

may be summarised as follows.

A.   Particular circumstances of the case

     In 1987 serious marital differences arose between the applicant

and her husband and the applicant was allegedly assaulted by her

husband on a number of occasions including on 11 December 1988.

     On 12 December 1988 the applicant instructed her solicitors to

institute proceedings for a barring order against her husband (to bar

the husband from the family home). Later that day, at 20.00 hours

approximately, the applicant's husband attended at a doctor's surgery

with the applicant's father in order to discuss the applicant's mental

condition with the doctor ("Doctor A"). The applicant was not a patient

of Doctor A though she had met Doctor A on one occasion approximately

five years previously.

     In subsequent proceedings before the High Court (see below) there

was a conflict of evidence before the judge on what transpired at that

meeting but the judge accepted the following evidence of Doctor A. Both

the husband and father expressed concern about the behaviour of the

applicant towards the children and her husband, both were apprehensive

that the applicant might kill herself and both were anxious for the

welfare of the applicant and her four children. Doctor A was aware of

the on-going marital difficulties and he therefore questioned the

applicant's father about the applicant. The applicant's father informed

Doctor A that the applicant had come to see him earlier that day, they

had a disagreement and the applicant had threatened to kill herself.

The applicant's father told Doctor A that his daughter was sick and

"gone in the head". Both the applicant's husband and her father wanted

Doctor A to act that evening. (The applicant's father claimed, during

the High Court hearing, that he argued with the applicant that day

because of false information supplied to him by her husband and that

he did not make any of the above described statements to Doctor A).

     The following evidence of Doctor A, in respect of his subsequent

visit to the family home, was also accepted by the High Court judge.

Based on what he had heard at the above-described meeting with the

husband and the applicant's father, Doctor A went the same evening with

the applicant's husband to the family home.

     When the applicant opened the door and saw her husband she became

extremely hysterical, verbally abusive and violent towards her husband,

over a period of a minute or so, driving her husband back from the door

of the house. Doctor A, who was standing 12 to 15 yards away from the

door, noted the applicant's reactions, felt it confirmed the history

already given to him and concluded that the applicant "was in an

extremely disturbed mental state, very agitated, acutely anxious and

very hysterical". Doctor A 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.

     Later that evening the applicant's husband signed the

"Application Form", in prescribed form, constituting his application

to have the applicant committed involuntarily as a temporary patient

to a psychiatric hospital. Doctor A then signed the "Certificate", also

a prescribed form certifying the husband's application. In signing,

Doctor A certified 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.

     At 22.30 hours on the same evening two members of the Gardai

Siochana (the Irish police force), a nurse and an ambulance driver

arrived at the applicant's house. The applicant allowed them into her

home, she co-operated with them and did not offer any resistance. She

was told that a medical certificate had been signed by a doctor and she

was brought to the psychiatric hospital. One of the policemen indicated

in evidence, at the High Court hearing, that the applicant was calm and

composed when he arrived at the family home.

     Later that night at the psychiatric hospital the applicant was

examined physically and interviewed by another doctor ("Doctor B") who

noted certain bruising on the applicant which the applicant explained

was caused by marital violence. Doctor B, before making her diagnosis,

spoke on the telephone with Doctor A and the consultant psychiatrist

on duty. Doctor B formed the opinion that the applicant might have been

suffering from mental illness and required detention to be assessed and

therefore asked the applicant whether she would voluntarily admit

herself. The applicant would not and thus Doctor B signed a Reception

Order. The applicant was accordingly received and detained in the

psychiatric hospital as an involuntary temporary patient 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. The applicant claims that

while in the psychiatric hospital, she had requested and was refused

access to a telephone to contact her solicitor and her priest.

     The applicant wished to take an action against Doctor A and the

Mid-Western Health Board (Doctor B's employer and the proprietor of the

institution). However, the applicant first had to apply, to the High

Court, for leave to institute proceedings pursuant to section 260 of

the 1945 Act under which section the applicant had to demonstrate that

she had "substantial grounds" for contending that the proposed

defendants had acted in bad faith or without reasonable care.

     The main argument of the applicant before the High Court (and

later in the Supreme Court), was that Doctor A did not comply with

section 184(4). By judgment of Mr. Justice Murphy dated 7 June 1991 the

High Court refused the applicant leave to institute proceedings,

finding that the examination of the applicant by Doctor B showed the

highest degree of care and consideration. In respect of the actions of

Doctor A, Mr. Justice Murphy accepted that the applicant's evidence was

not fanciful and that liberty to institute proceedings would be given

except for the fact that he had heard the issue in full and was in a

position to decide where the truth lay after a hearing and cross-

examination of over three days. Having preferred the account of Doctor

A there was only one issue to consider, that is, whether there had been

adequate examination for the purposes of the certificate which that

doctor had signed.

     Mr. Justice Murphy quoted a previous Supreme Court decision to

the effect that "in a situation such as existed on the night in

question the law does not require a standard of precision such as might

be appropriate to other aspects of medical practice". Mr Justice Murphy

concluded his judgment as follows:

     "Having regard to those observations      decision> and having regard to the critical history which had

     been given to the doctor some short time ago by the Plaintiff's

     father and husband and observing conduct which would appear to

     be inappropriate but entirely consistent with the history of

     which he was informed it seems to me that this was an adequate

     examination."

     Thus Mr Justice Murphy found that the attendance by Doctor A at

the family home on 12 December 1988 was sufficient "examination" for

the purposes of section 184(4) of the 1945 Act. Accordingly, no

"substantial grounds" for a claim existed within the meaning of section

260(1) of the 1945 Act. The defendants' costs were awarded against the

applicant with a stay on the execution of that order for costs for

twenty-one days and with a proviso that should the applicant appeal to

the Supreme Court execution of the order for costs should be stayed

pending the determination of that appeal.

     The applicant lodged an appeal to the Supreme Court in relation

to Doctor A only. In the course of submissions to the Supreme Court,

the applicant's counsel argued that if the court was to hold that

sufficient examination had taken place, for the purposes of section

184(4) of the 1945 Act, then that would be a breach of the applicant's

constitutional rights.

     On 16 November 1993 the Supreme Court, by a majority of 2 to 1,

endorsed the High Court judge's approach to the conflicting evidence

presented at the High Court hearing, upheld that judge's interpretation

of sections 184(4) and 260 of the 1945 Act and therefore rejected the

applicant's appeal. Mr. Justice Blayney, in his dissenting opinion, was

satisfied that the applicant had established a prima facie case that

there were substantial grounds for contending that Doctor A had acted

without reasonable care. He concluded his judgment as follows:

     "If the appellant were not given the right to sue, she would be

     being deprived of a remedy for what is quite clearly a wrong. The

     manner in which she was deprived of her liberty contravened one

     of the basic requirements of natural justice, namely, audi

     alteram partem. The appellant was given no opportunity to defend

     herself before being removed from her home. If she had been

     examined by she could have put her side of the case

     to him. But she was not. And the learned trial judge accepted

     that not only was she not examined by but that she

     never saw him. To deny her the right to sue in such circumstances

     would be a total denial of justice."

     No order as to the costs of the appeal was made the court taking

the view that the applicant had suffered enough as a result of her

ordeal.

B.   Relevant domestic law and practice.

1. Application for and making of a temporary chargeable patient

reception order

     Section 184(2) of the Mental Health Act 1945 provides that an

application for the making of a temporary chargeable patient order can

be made by, inter alia, a spouse. Section 184(4) provides, insofar as

relevant, as follows:

     "An application under this section shall be accompanied by a

     certificate in the prescribed form of the authorised medical

     officer certifying that he has examined the person to whom the

     application relates on a specified date .... and is of the

     opinion .... - [emphasis added]

     (a) that such person -

           (1) is suffering from mental illness, and

           (2) requires, for his recovery, not more than six months

           suitable treatment, and

           (3) is unfit on account of his mental state for treatment

           as a voluntary patient ...."

     (5) After the consideration of an application ... and of the

     certificate accompanying the application, the person to whom the

     application is made may, if he so thinks proper, make such an

     order in the prescribed form."

     The relevant prescribed forms (Application Form, Certificate and

Reception Order) are provided for by Regulation 27 of the Mental

Treatment Regulations 1961.

2. Powers and duties of the police

     Section 186(1) of the 1945 Act allows the applicant for a

temporary chargeable patient order to authorise others (for example,

the police) to convey the person to whom the order relates to the

psychiatric institution. The police also have a common law and

constitutional duty to assist in the protection of life and property.

3. Restriction on access to court

     Section 260(1) of the 1945 Act reads as follows:

     "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."

4. Other provisions of the 1945 Act

(a) Removal to a police station of a person believed to be of unsound

mind and requiring control is governed by section 165(1) of the 1945

Act, which section reads as follows:

     "Where a member of the is of the 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 the person

     into custody and remove him to a . ..."

(b) If a person is received into a psychiatric institution pursuant

to sections 163 and 171 of the 1945 Act (as amended) by way of a

statutory medical certificate and reception order, pursuant to section

172 of the 1945 Act that person can be detained until his removal or

discharge by a proper authority or until death.

5. Constitutional actions

     Order 60 Rule 1 of the Rules of the Superior Courts 1986 provides

that the Attorney General, if not already a party, must be served by

the party having carriage of the proceedings with notice in any action

where the constitutional validity of an Act is in question and the

Attorney General is thereupon entitled to appear and be a party to the

case insofar as it concerns the validity of the legislation. A finding

of constitutional invalidity is, in principle, retroactive in its

effects and not merely for the case in point (Murphy v. the Attorney

General 1982 IR 241).

6. Relevant jurisprudence

(a) In Re. Philip Clarke [1950] IR 235 - A constitutional challenge to

section 165 of the 1945 Act was dismissed by the Supreme Court, that

court describing the provision as being of "paternal character clearly

intended for the care and custody of persons suspected to be suffering

from mental infirmity and for the safety and well-being of the public

generally".

(b) R.T. v. Director of the Central Mental Hospital, judgment of

Costello J, 16 February 1995, [1995] 2 ILRM 354 and Croke v. Smith (no.

2), unreported judgment of Budd J., 27 and 31 July 1995 - In the former

case the High Court was of the opinion that section 207 of the 1945 Act

infringed the constitutional right to liberty. In the latter case the

High Court was of the opinion that sections 163, 171 and 172 of the

1945 Act were unconstitutional. In both cases the Attorney General was

joined to the proceedings and both cases are pending before the Supreme

Court.

(c) Meskill v. C.I.E. (1973 IR 121) - In that case it was stated that

if a person suffered damage by virtue of a breach of his constitutional

rights he is entitled to sue for and obtain damages. In Kennedy v.

Ireland (1987 IR 587) the State was made vicariously liable in damages

for the actions of the former Minister for Justice and of certain

police officers in respect of the unlawful interference with the

plaintiff's constitutional right to privacy.

(d) Best v. Welcome Foundation Limited, Dr. M. O'K, The Southern Health

Board, The Minister for Health and the Attorney General, judgment of

3 June 1992, [1992] ILRM 609 - In an action alleging negligence against

the manufacturers of a vaccine, a claim was also made that the State

owed a constitutional obligation, once they permitted the giving of the

vaccine, to compensate the rare number of cases in which children

reacted badly. The Supreme Court found that the Welcome Foundation was

negligent and, based on that finding, the State could no longer be

regarded as the appropriate defendant.

(e) Hegarty v. O'Loughlin [1990] ILRM 403 - Chief Justice Finlay of the

Supreme Court, in a case involving the interpretation of a certain

statutory provision, stated as follows:

     "If and when a challenge is made to the constitutional validity

     of this subsection by a person adversely affected by it, and the

     matter is fully argued and the facts established in a particular

     case, it will be necessary for the court to make a decision upon

     it. Until that time, however, I would reserve my view on the

     question of its constitutional validity other than to presume it

     constitutional which I must do."

COMPLAINTS

     The applicant complains of violations of Articles 5, 6, 8 and 13

of the Convention.

     As to Article 5 para. 1 of the Convention she complains that the

procedure prescribed under section 184(4) of the 1945 Act was not

complied with. Alternatively, if it was complied with then section

184(4) of the 1945 Act allowed an arbitrary deprivation of the liberty

of the applicant without the involvement of an appropriate authority.

     As to Article 5 para. 3 of the Convention she complains that she

was not brought promptly before a judge or other officer authorised by

law to exercise judicial power.

     As to Article 5 para. 5 of the Convention she complains that she

did not have an enforceable right to compensation because of the

operation of sections 184(4) and 260(1) of the 1945 Act.

     The applicant also claims that she was denied access to a lawyer

while in the psychiatric hospital.

     As to Article 6 para. 1 of the Convention she complains that

section 260 of the 1945 Act, in obliging her to seek leave to institute

proceedings, constituted an unfair procedural bar and denied her a fair

and public hearing into her detention.

     As to Article 8 para. 1 of the Convention she complains about the

intrusion of the policemen into her home in order to take her to the

psychiatric hospital.

     As to Article 13 of the Convention she complains that she had no

effective remedy under domestic law in respect of her committal to the

psychiatric hospital.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 23 March 1994 and was

registered on 25 May 1994.

     On 17 October 1994 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits.

     The Government's observations were submitted on 2 February 1995

after one extension in the time limit fixed for that purpose. The

applicant's observations in reply were submitted on 3 March 1995.

     On 3 March 1995 the Commission decided to grant legal aid to the

applicant.

     On 4 September 1995 the Commission decided to invite the parties

to an oral hearing. The Government subsequently submitted further

observations dated 8 January 1996. An oral hearing took place on

22 January 1996. At the hearing the Government were represented by Ms.

Emer Kilcullen, Agent, Department of Foreign Affairs, Mr. Paul

Gallagher S.C., Counsel, Mr. Diarmaid McGuinness B.L., Counsel together

with Mr. Matthew Feely and Mr. Brian Howard, as advisers. The applicant

was represented by Mr. A. Sexton, B.L., Counsel and Ms. L. Collins,

Solicitor.

THE LAW

1. Articles 5 paras. 1 and 5 (Art. 5-1, 5-5) of the Convention

     Article 5 paras. 1 and 5 (Art. (-1, 5-5) of the Convention,

insofar as relevant, reads as follows:

     "1. Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

           e. the lawful detention ... of persons of unsound mind ...;

     5. Everyone who has been the victim of ... detention in

     contravention of the provisions of this Article shall have an

     enforceable right to compensation."

A.   As to exhaustion of domestic remedies

     The Government essentially maintain that a challenge to the

constitutionality of section 184(4) of the 1945 Act would have been an

effective domestic remedy and that the applicant did not exhaust this

remedy.

     In the first place, the Government refer to recent jurisprudence

where provisions of the 1945 Act have been found to be unconstitutional

by the High Court (Croke v. Smith, loc. cit. and R.T. v. the Director

of the Central Mental Hospital, loc. cit.).

     In addition, the Government submit that the constitutionality of

legislative provisions can be subsequently considered by a court even

if the courts have previously interpreted those provisions in a

particular way and even if the applicant is complaining about the

application of legislative provisions in her case rather than the

provisions per se (Hegarty v. O'Loughlin & Another, loc. cit.).

     As to how and when the applicant could have taken such a

constitutional action, the Government point out that the applicant

would have had a choice. In the proceedings which she did initiate, she

could have claimed in the alternative that section 184 as a whole did

not comply with constitutional guarantees. If the entire section was

declared invalid then there would have been no detention pursuant to

law. Alternatively, she could have commenced proceedings separately

after the adverse determination of the High Court or the Supreme Court,

claiming that section 184 as applied was unconstitutional and

inadequate. There is no time limit for bringing an action for a

declaration of unconstitutionality.

     Furthermore, the Government submit that, while damages against

the State do not flow directly from a finding as to

unconstitutionality, it is well established that the State would have

a liability in damages for maintaining unconstitutional legislation

pursuant to which other people acted and the claim could be pursued by

way of a separate plenary summons for damages against the State. While

it has not been definitively determined, a very recent decision of the

High Court suggests that a limitation period of six years from the

occurrence of damage would apply to an action in damages against the

Government so that the applicant would have had until 1994 to bring

that damages claim.

     Finally, the Government refer, mainly within the context of

Article 5 para. 5 (Art. 5-5) of the Convention, to the applicant's

failure to take an action against her husband, her father and the

police or to pursue the action against the health board to the Supreme

Court.

     The applicant submits that a constitutional challenge to section

184(4) of the 1945 Act would not have been normal use of domestic

remedies and would not have amounted to an effective domestic remedy

for a number of reasons.

     In the first place, such an action would be unlikely to succeed

in light of domestic jurisprudence in relation to provisions similar

to section 184(4) of the 1945 Act (In Re Philip Clarke [1950] I.R.

235). Secondly, the applicant's grievance essentially relates to the

application of section 184(4) of the 1945 Act in her case and not to

the existence of the section per se. Therefore, to have then challenged

the unconstitutionality of section 184(4) (at the same time or

subsequent to the leave proceedings) would have been inconsistent.

     Thirdly and since the Irish courts will not find legislation

unconstitutional when it is capable of interpretation in a

constitutional manner (there being a presumption as to

constitutionality), it was unlikely that a constitutional action about

the application of the section in her case would succeed.

     Fourthly, an effective remedy would necessarily require a

prospect of recovering damages requiring another set of proceedings (in

addition to the constitutional proceedings) and the relevant period of

limitation applicable to such a damages action would be three years -

detention pursuant to unconstitutional legislation being considered as

a "tort". There is no specific limitation period set down in Irish law

for a constitutional action.

     The applicant accepts that, since she did not give notice to the

Attorney General of the proceedings, her raising of constitutional

issues before the Supreme Court during the appeal in the leave

proceedings did not properly constitute a constitutional challenge.

     The Commission recalls that according to the constant case-law

of the Convention organs the obligation to exhaust domestic remedies

requires only that an applicant make normal use of remedies which are

effective, sufficient and accessible (see, for example, No. 12742/87,

Dec. 3.5.89, D.R., 61 p. 206).

     The Commission considers, from the submissions of the parties,

that the applicant could have challenged the constitutionality of

section 184(4) of the 1945 Act as it was applied to her either as an

alternative argument before the High Court, after the High Court

decision against the applicant in June 1991 or after the Supreme Court

decision in November 1993 (no limitation period applying to such

declaratory constitutional actions). As an individual at liberty, in

order for the constitutional remedy to be effective the applicant

required damages and thus a separate action commenced by plenary

summons, the summons to issue contemporaneously with the constitutional

claim or after a successful constitutional challenge. The period of

limitation for such an action is in dispute (between three and six

years from the applicant's detention).

     The Commission finds that the applicant was initially entitled

to choose which remedy to exhaust and she chose, quite reasonably in

the Commission's view, to initiate leave proceedings to take an action

against, inter alia, Doctor A on the basis that her essential grievance

was the nature of his examination of her (No. 9118/80, Dec. 9.3.83,

D.R.32 p. 159 and Eur. Court H.R., Airey judgment dated 9 October 1979,

Series A no. 32, p. 12, para. 23).

     However, the applicant also appears to have had the opportunity

to institute a constitutional and related damages action against the

State in relation to the application of section 184(4) of the 1945 Act

in her case after the June 1991 decision of the High Court against her.

At that stage the High Court after a detailed hearing with witnesses,

had outlined in a lengthy judgment against the applicant the

interpretation of section 184(4) of the 1945 Act and she was still

within the lesser of the limitation periods as regards damages

submitted by the parties.

     The Commission has therefore considered whether the applicant's

failure to take the actions outlined in the preceding paragraph renders

these complaints inadmissible on grounds of non-exhaustion.

     In this respect, the Commission recalls that a declaratory action

before the High Court, with the possibility of an appeal to the Supreme

Court, constitutes the most appropriate method under Irish law of

seeking to assert and vindicate constitutional rights (No. 15141/89,

Dec. 15.2.90, D.R. 64 p. 203). It is also recalled that in a legal

system which provides constitutional protection for fundamental rights,

it is incumbent on the aggrieved individual to test the extent of that

protection and, in a common law system, to allow the domestic courts

to develop those rights by way of interpretation (No. 18670/91, Dec.

1.12.93, unpublished).

     However, Article 26 (Art. 26) of the Convention must be applied

with some degree of flexibility and without excessive formalism (see,

for example, Eur. Court. H.R., Cardot judgment of 19 March 1991, Series

A no. 200, p. 18, para. 34) and, in this context, certain special

circumstances can, in accordance with the generally recognised rules

of international law, absolve an applicant from the obligation to

exhaust a domestic remedy (see, for example, No. 14556/89, Dec. 5.3.91,

D.R. 69 p. 261).

     As to whether the applicant can be so absolved, in the

circumstances of this case, from a declaratory action and a

corresponding action in damages against the State after the High Court

decision in June 1991, the Commission notes the following. In the first

place, there is a conflict between the parties as to the limitation

period applicable to an action in damages against the State (the

Government referring to a 1995 domestic judgment as authority for a six

year limitation period). Secondly, the Government did not, at the time

of their observations or oral submissions, provide any case-law

indicating or establishing the liability of the State to pay damages

pursuant to a finding of unconstitutionality of a legislative provision

enacted years beforehand. In the only case referred to by the

Government in this respect (Best v. Welcome Foundation Limited, Dr. M.

O'K, The Southern Health Board, The Minister for Health and the

Attorney General, loc. cit.) the vaccine manufacturer, and not the

State, was eventually found liable in tort.

     Thirdly, the Commission is cognisant of the reasonableness of the

applicant's decision to pursue the leave proceedings as regards Doctor

A and of her decision to have, what was for her, an unexpected

interpretation of the word "examine" in section 184(4) of the 1945 Act

confirmed by the Supreme Court. Fourthly, the Commission also notes the

relative novelty in claiming damages from the State in such

circumstances (evidenced by the difficulty experienced by the parties

in clarifying when and how this could be done). Finally, even assuming

that the six year limitation period applied to the damages action,

allowing the applicant to commence the constitutional and damages

actions after the Supreme Court decision of November 1993, this would

involve commencing complex proceedings almost five years after the

applicant's detention.

     As regards the Government's submissions as to an action against

the police, the Commission notes that there is no allegation that the

police exceeded their duties in any way. As regards separate actions,

also suggested by the Government, against the applicant's husband and

father and as regards the applicant's failure to appeal to the Supreme

Court the High Court's decision against the health board, the

Commission recalls that the substance of the applicant's complaint is

the nature of the examination carried out by Doctor A which led to her

detention and that she appealed this issue to the Supreme Court. In

such circumstances the Commission is of the opinion that the same

considerations of reasonableness, noted above, apply to the choice of

remedies made by the applicant which did not include these additional

actions raised by the Government.

     In all of these circumstances, the Commission finds that the

applicant is absolved from taking the actions proposed by the

Government and that the applicant's complaints under Article 5 paras.

1 and 5 (Art. 5-1, 5-5) of the Convention are not therefore

inadmissible on grounds of non-exhaustion of domestic remedies.

B.   As to the substance of the applicant's complaints.

(i) Article 5 para. 1 (Art. 5-1) of the Convention

     The applicant submits, inter alia, that her detention was

unlawful as section 184(4) of the 1945 Act was not complied with (in

light of the nature of the examination of Doctor A) and that, in the

alternative, her committal constituted an arbitrary deprivation of her

liberty without the involvement of an appropriate authority. She does

not accept that the situation constituted an emergency referring, inter

alia, to the failure by Doctor A even to attempt to address himself to

her by which he could have finalised his views as to the emergency

nature of the situation and to the failure to use section 165 of the

1945 Act, that being, according to the applicant, the emergency

provision in the 1945 Act. The applicant also points out that her

potential period of confinement was six months.

     The Government submit, inter alia, that the Irish courts

confirmed on the basis of the evidence before them that an emergency

existed on the evening in question and that the applicant had the

additional protection of a full examination by a second doctor (who

consulted with Doctor A and a consultant psychiatrist). The Commission

is only concerned with the particular circumstances of each case and,

in the present case, whatever the potential period of detention, the

applicant was released after three days.

(ii) Article 5 para. 5 (Art. 5-5) of the Convention

     The applicant complains that the basis of her domestic action was

that Doctor A acted without reasonable cause, that sections 184(4) and

260 of the 1945 Act operated to deprive her of her enforceable right

to compensation in this regard and that theoretical causes of action

against other persons were largely irrelevant to her grievance.

     The Government submit that the applicant had an enforceable right

to compensation but did not attempt to take the necessary proceedings

to enforce any such right. The Government refer in particular to the

applicant's failure to complete the proceedings against Doctor B and

the relevant health board in charge of the psychiatric institution

together with her failure to take proceedings for compensation against

her husband, her father, the police, the State and the Attorney General

(the latter as regards the constitutionality of section 184(4)). The

Government argue therefore that the applicant simply did not seek to

avail herself of the remedies available to her and thus it cannot be

said that she was deprived of an enforceable right to compensation.

     The Commission finds, in light of the parties' submissions that

the complaints of the applicant under Article 5 paras. 1 and 5

(Art. 5-1, 5-5) of the Convention raise serious and complex issues of

fact and law which require determination on their merits. It follows

that these complaints of the applicant cannot be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring them

inadmissible has been established.

2. Articles 8 and 13 (Art. 8, 13) of the Convention

     Article 8 (Art. 8) of the Convention, insofar as relevant, read

as follows:

     "1. Everyone has the right to respect for his private and family

     life, his home ..."

     Article 13 (Art. 13) of the Convention reads as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

     The applicant complains about the intrusion of the policemen into

her home in order to take her to the psychiatric hospital. The

Government submit that Article 5 para. 1 (e) (Art. 5-1-e) is the lex

specialis in relation to such detention and that, even if Article 8

(Art. 8) is found to be applicable, the interference was justified

under the second paragraph of Article 8 (Art. 8-2) of the Convention.

As regards Article 13 (Art. 13) of the Convention, the applicant

complains that she had no effective remedy under domestic law in

respect of her committal to the psychiatric hospital and the Government

submit that the applicant had an effective remedy in respect of her

claims about her admission to and detention in the psychiatric

institution, the High and Supreme Courts determined those claims and,

had her claims been upheld, redress would have followed under Irish

law.

     Insofar as the Government argue non-exhaustion of domestic

remedies in relation to the applicant's complaints under these

Articles, the Commission refers to its opinion expressed at 1. A above

as to the applicant's choice of remedies. The Commission therefore

considers that these complaints of the applicant cannot be declared

inadmissible on grounds of non-exhaustion of domestic remedies.

     As to the merits of these complaints and in light of the parties'

submissions, the Commission finds that the complaints of the applicant

under Articles 8 and 13 (Art. 8, 13) of the Convention, being closely

connected on the facts to the complaints under Article 5 paras. 1

and 5 (Art. 5-1, 5-5) of the Convention, raise issues of fact and law

which require determination on their merits. It follows that these

complaints of the applicant cannot be dismissed as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring them inadmissible has been

established.

3. Article 5 (Art. 5) of the Convention - denial of access to a lawyer

     The applicant also claims that she was denied access to a lawyer

while in the psychiatric hospital. She does not invoke any specific

Article of the Convention in this respect. Her claims in this regard

were included in her affidavits before the High Court which affidavits

the applicant was allowed to "confirm" and she was thereby taken as

having given sworn oral evidence as to their contents. This evidence

remained uncontested in the High Court. In addition, the refusal of

access was an act done in pursuance of the 1945 Act, since the

applicant was detained in pursuance of that Act and thus leave of the

court under section 260 would be required to take any action as regards

a denial of access to a lawyer. The clear refusal by the High Court to

accept wrongdoing on the part of the health board's doctor (Doctor B)

indicated little point in pursuing an appeal against the health board.

     The Government argue that the applicant has not exhausted

domestic remedies in that she failed to pursue an appeal against the

health board to the Supreme Court or issue separate proceedings against

the health board as regards a refusal of such access, for which latter

proceedings she would not have required leave pursuant to section 260.

The Government also argue that the applicant has failed to substantiate

her claim in this respect, provide the result of their own enquiries

and dispute the allegation.

     Even assuming that this complaint falls to be considered under

Article 5 (Art. 5) of the Convention, the Commission notes the dispute

between the parties as to whether leave of the court under section 260

of the 1945 Act is required to take proceedings against the health

board as regards this allegation against their staff at the psychiatric

hospital.

     The Commission notes that any denial of access to a lawyer would

not prima facie fall within the scope of Section 260 of the 1945 Act.

However and even assuming the necessity to obtain leave, the Commission

notes that leave proceedings were commenced by the applicant against,

inter alia, the health board in which certain affidavits referring to

the above allegation against health board staff were filed and

subsequently "confirmed" during the hearing. However, the allegation

was not specifically pursued at all by the applicant in oral evidence

and the only legal submission made by the applicant's counsel as to

health board staff conduct related to the actions of Doctor B on the

night of the applicant's committal. The applicant's appeal to the

Supreme Court did not concern the health board at all. Her

justification for this, the High Court's strong endorsement of Doctor

B's conduct on the night of the applicant's committal, is irrelevant

to the issue of whether other members of staff working for the health

board denied the applicant access to her lawyer in the days following

her detention.

     In the circumstances, the Commission considers that the applicant

has not exhausted domestic remedies as regards her complaints about a

denial of access to a lawyer and the complaint must, accordingly, be

declared inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention.

4. Article 5 para. 3 (Art. 5-3) of the Convention

     Article 5 para. 3 (Art. 5-3) of the Convention, insofar as

relevant, reads as follows:

     "3. Everyone ... detained in accordance with the provisions of

     paragraph 1. c. of this Article shall be brought promptly before

     a judge or other officer authorised by law to exercise judicial

     power and shall be entitled to trial within a reasonable time or

     to release pending trial."

     The applicant complains that she was not brought promptly before

a judge or other officer authorised by law to exercise judicial power

and there is no provision for such a procedure in the 1945 Act and

raises this complaint under Article 5 para. 3 (Art. 5-3) of the

Convention. However, the Commission recalls that the protections

contained in this paragraph relate to persons detained in accordance

with the provisions of paragraph 1(c) of Article 5 (Art. 5-1-c) and the

applicant does not suggest that she was so detained. Accordingly this

complaint of the applicant is incompatible ratione materiae with the

provisions of the Convention and, accordingly, must be declared

inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

5. Article 6 para. 1 (Art. 6-1) of the Convention

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

     "1. In the determination of his civil rights ..., everyone is

     entitled to a fair and public hearing within a reasonable time

     by an independent and impartial tribunal established by law. ..."

     Insofar as the applicant complains about the existence of section

260 of the 1945 Act, the Commission notes that she accepts, in light

of the decision of the Commission in a previous Irish case (No.

10296/83, Dec. 3.12.86, unpublished), that she has not exhausted

domestic remedies. In that case, as in the present application, the

applicant had not directly challenged the constitutionality of section

260 of the 1945 Act by serving the Attorney General as required by

Order 60 Rule 1 of the Rules of the Superior Courts 1986.

     Insofar as the applicant seeks to distinguish between the

existence and the application of section 260 of the 1945 Act in her

case, the Commission considers the distinction unreal in the

circumstances of this case. In practice a challenge to the

constitutionality of legislation by an individual affected is based on

factual assertions as to its application to them and their locus

standi. In addition and unlike the question of damages against the

State following a declaration of unconstitutionality (see 1. A above),

there would be no obscurity as to the effect of a declaration of

invalidity of section 260 - the applicant would no longer have to

obtain the leave of the court to take proceedings in relation to acts

done in pursuance of her statutory detention.

     The Commission therefore finds that the applicant has not

exhausted domestic remedies in relation to this complaint and an

examination of the case discloses no special circumstances which might

have absolved her, according to the generally recognised rules of

international law, from exhausting this domestic remedy. Accordingly,

this complaint must be declared inadmissible pursuant to Article 27

para. 3 (Art. 27-3) of the Convention.

     For these reasons the Commission,

     by a majority,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaints relating to the nature of her examination

     by a doctor leading to her involuntary committal to a psychiatric

     institution; and

     unanimously,

     DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

     Deputy Secretary to the Commission      President of the Commission

                 (M. de SALVIA)                   (S. TRECHSEL)

 

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