A Supreme Court judge has declined to step aside from an appeal brought by Louis Blehein concerning his proposed legal action over periods of detention and treatment at St John of God Hospital in Stillorgan.
Blehein wished to sue the hospital for declarations that his detention during periods in 1984, 1987 and 1991 was unlawful and that his treatment was unconstitutional and amounted to assault. The judgment records that the acts complained of were carried out under, or purportedly under, the Mental Treatment Act 1945.
Section 260 of that Act required Blehein to obtain High Court permission before bringing civil proceedings. Such permission could only be granted where substantial grounds existed for alleging bad faith or lack of reasonable care. O'Sullivan J refused leave on 6 July 2000 and Blehein appealed.
At the opening of the Supreme Court appeal, Blehein, who represented himself, asked Mr Justice Murphy to recuse himself because the judge had participated in and delivered judgment in an earlier appeal involving Blehein.
Blehein argued that the judge's participation could create an appearance of bias. His objection ultimately extended to any judge who had previously refused an application under section 260, on the basis that such a judge had already accepted the provision's operation.
Mr Justice Murphy rejected that reasoning. He said applying existing law did not itself demonstrate bias. More importantly, he considered that the specific constitutional argument Blehein now wished to make about section 260 had not previously been decided by the Supreme Court, so no issue of prejudgment arose.
Because Blehein was unrepresented, the judge consulted the President of the Court in accordance with an approach previously suggested in Rooney v Minister for Agriculture. Having regard to Mrs Justice Denham's judgment, he concluded that he was not justified in withdrawing from the appeal.