C v C.J. (Approved)

      That section (a) �introduced a requirement that a plaintiff obtain leave of the High Court before instituting proceedings ' in respect of an act purporting to have been done in pursuance of' that Act, (b) limited the causes of action that might be invoked by a plaintiff in such proceedings to those in which it was claimed that the defendant ' acted in bad faith or without reasonable care' and (c) conditioned the grant of such leave by imposing a requirement that there be ' substantial grounds for contending' that the proposed defendant had thus acted.�

      The rationale for the legislation was described by Henchy J. in the course of his judgment in O'Dowd at p. 196:

' It is an unfortunate syndrome of certain kinds of mental illness that a patient compulsorily detained in a mental hospital for treatment conceives a deep-seated but quite unjustified conviction that his detention was unnecessary, even malevolent or unlawful, and that what he considers to be victimisation should give him a good cause of action for damages.� The undesirability of giving free rein in the courts to such a delusional obsession is recognised by s. 260 of the Mental Treatment Act 1945.' [1] �

      The response of the legislature via s. 73 of the Mental Health Act 2001 was to maintain the pre-existing requirement that an intending plaintiff seeking to institute civil proceedings in respect of an act purporting to have been done in pursuance of the Act, obtain the leave of the High Court to commence that action.� However, the consequent jurisdiction is now defined by the following features:

(i)                  The default position is reversed.� Whereas under the 1945 Act a plaintiff had to satisfy the court of identified statutory criteria before being permitted to proceed with his action, under s. 73 the court must grant leave unless it is satisfied of the limiting grounds now prescribed.