Jersey Unreported Judgments

[2010]JRC143A

royal court

(Samedi Division)

3^rd August 2010

Before     :

Sir Philip Bailhache, Commissioner, Sitting alone.

 

Advocate D. F. Le Quesne for the Plaintiff.

Advocate M. H. Temple for the Defendant.

judgment

the commissioner:

History

1.        On 26^th January, 2007, the plaintiff John Michael Highfield suffered a serious injury to his ankle when he jumped from the roof of Orchard House, St Saviour's Hospital, and landed in the road some 20 ft below.  He was taken to the Accident and Emergency Department of the General Hospital and later underwent surgery for a Pilon fracture to the talus.  He now suffers from stiffness of the ankle joint and has developed osteoarthritis which is likely to deteriorate.  Pain, swelling and deformity are likely to worsen with time.  He cannot now play sport and his employment prospects are diminished. 

2.        The plaintiff, who was aged 26 at the time of the incident, jumped from the roof in an attempt to escape from detention under Article 7 of the Mental Health (Jersey) Law 1969 ("the 1969 Law").  He has been diagnosed with bipolar disorder.  He had been under the care of St Saviour's Hospital since November 2006, sometimes as an in-patient and sometimes as an out-patient.  On 19^th December, 2006, the plaintiff had been detained at Orchard House pursuant to an application by an officer of the Health Department.  The application had been supported by two registered medical practitioners, who stated that the plaintiff was suffering from a schizophrenic disorder and was psychotic with paranoid delusions.  Orchard House is administered and controlled by the defendant Minister as a Mental Health Unit.  The plaintiff has alleged that he was being bullied at Orchard House, which is why he wanted to escape. 

3.        On 26^th January, 2010, exactly three years after the incident, the plaintiff issued proceedings by Order of Justice against the Minister for Health and Social Services ("the Minister").  The plaintiff alleges that he was allowed into a yard at Orchard House for recreation and was left alone and unsupervised.  He tried to escape by climbing on to a roof which was easily accessible from the yard, and subsequently leaping from the roof to the road below.  The plaintiff alleges that the Minister owed him a duty of care, and in particular, a duty to take reasonable steps to prevent the plaintiff from injuring himself.  It is claimed that the Minister was in breach of her duty of care towards the plaintiff because (inter alia) she knew that an attempt to escape from the yard was likely to prove dangerous, failed to make the yard escape-proof, failed to supervise the plaintiff, failed to provide a safe and secure environment for him while under detention and failed to take other appropriate measures to prevent the plaintiff from attempting to escape. 

4.        The Minister has not yet pleaded to the Order of Justice.  Counsel told me that she accepts that she owed the plaintiff a duty of care, but denies that there has been any breach of that duty.  The Minister has, however, issued a summons claiming that the Court has no jurisdiction to hear the plaintiff's claim on the ground that he has failed to obtain the leave of the Superior Number to issue proceedings contrary to Article 50(2) of the 1969 Law.  The relevant part of Article 50 provides as follows:-

"50.    Protection for acts done in pursuance of this Law

(1)       No person shall be liable, whether on the ground of want of jurisdiction or on  any other ground, to any civil or criminal proceedings to which the person would have been liable apart from the provisions of this Article in respect of any act purporting to be done in pursuance of this Law or any Order made thereunder, unless the act was done in bad faith or without reasonable care.  

(2)       No civil or criminal proceedings shall be brought against any person in respect of any such act without the leave of the Superior Number of the Royal Court, and the Superior Number shall not give leave under this Article unless satisfied that there is a prima facie case for the contention that the person to be proceeded against has acted in bad faith or without reasonable care."

5.        The question for the Court is a point of construction of Article 50(2).  Was the plaintiff required to obtain the leave of the Superior Number prior to issuing proceedings against the Minister?  I interpose, en passant, that the proposition that a prospective plaintiff should be required to obtain the leave of the Superior Number is a surprising one.  The statutory provision in question is based upon an equivalent provision in the Mental Health Act of the United Kingdom where leave is required to be obtained from a judge of the High Court.  The substitution of the Superior Number for a judge of the High Court in transposing the provision into the statute law of Jersey is clearly ill considered.  The granting of such leave raises a point of law, and is a matter for the Bailiff or other presiding judge and not for the Jurats.  I express the hope that the Minister might see fit to propose an amendment to this inappropriate and highly inconvenient provision.  Be all that as it may, is leave required in this case?  If it is, the prescription period of three years having now expired, the plaintiff will be shut out from bringing proceedings against the Minister. 

The Minister's contentions

6.        Mr Temple, for the Minister, submitted that the statute was imperative and created a mandatory requirement for leave.  "No civil .... proceedings shall be brought against any person ..." without the leave of the Superior Number.  Leave cannot be granted unless the plaintiff has established a prima facie case that the Minister (or other persons acting in pursuance of the Law) has acted in bad faith or without reasonable care.  Counsel submitted that, in the absence of ambiguity or absurdity, even a harsh result is irrelevant to ordinary principles of statutory interpretation.  Ordinary words must carry their ordinary meaning. 

7.        Counsel relied upon a decision of the English courts (both in the Court of Appeal and in the majority opinion of the House of Lords) in Seal-v-Chief Constable of South Wales [2005] EWCA Civ 586 (CA) and [2007] UKHL 31 (HL).  In that case, Mr Seal had been removed by a police constable to a place of safety and subsequently detained for a week pursuant to powers under the Mental Health Act 1983.  Just prior to the expiration of the six year prescription period, he issued proceedings against the Chief Constable of South Wales for false imprisonment.  The district judge dismissed the proceedings on the application of the Chief Constable on the ground that Mr Seal had not first obtained the consent of a High Court judge under the equivalent provision to Article 50(2) of the 1969 Law.  Mr Seal's subsequent appeal to the Court of Appeal was dismissed, and his further appeal to the House of Lords was dismissed by a majority of 3 to 2. 

8.        Counsel drew my attention to a passage at paragraph 17 to 18 of the judgment of Lord Bingham of Cornhill in the House of Lords in the following terms:-

"17.    Counsel for Mr Seal made much of the injustice to a litigant such as Mr Seal if he finds that his proceedings are invalidated by failure to comply with a statutory requirement of which he was ignorant at a time when a statutory time bar effectively precluded him from retrieving his position by complying with the requirement.  It must be accepted that a strict rule such as that contended for by the Chief Constable may bear hardly on some litigants, of whom Mr Seal may be one.  But the Chief Constable is entitled to reply that if Mr Seal had issued proceedings before the very end of the six-year limitation period his failure to obtain leave, while it might have caused him delay and vexation, would not have debarred him from prosecuting his claim.  Thus the provision which effectively denies him the opportunity to proceed is not section 139 of the 1983 Act but section 2 of the Limitation Act 1980.  She is also able to reply that Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seal's, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by sections 141 of the 1959 Act and 139 of the 1983 Act to those whose very important and often difficult task it is to care for the mentally ill.  

18.      I would respectfully echo and endorse the principle enunciated by Viscount Simonds in Pyx Granite Co Ltd-v-Ministry of Housing and Local Government [1960] AC 260,286, which implicitly underpinned the argument for Mr Seal:-

'It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words.  That is ... a 'fundamental rule' from which I would not for my part sanction any departure.'

But the words first introduced in section 16(2) of the 1930 Act ('No proceedings, civil or criminal, shall be brought ...') appear to be clear in their effect and have always been thought to be so.  They were introduced with the obvious object of giving mental health professionals greater protection than they had enjoyed before.  They were re-enacted with knowledge of the effect the courts had given to them.  To uphold the decision of the three courts which have already considered the issue in this case and decided it in accordance with a clear consensus of professional opinion is not to sanction a departure from what Viscount Simonds rightly considered to be a fundamental rule."

The plaintiff's contentions

9.        Mr Le Quesne for the plaintiff did not seek to persuade me that Seal-v-The Chief Constable of South Wales was wrongly decided, although he did rely upon some of the arguments of Lord Woolf and Lady Hale, the dissenting members of the House of Lords.  Counsel's primary submission was that Seal was not really relevant to the issue which I had to decide.  Seal was concerned with whether proceedings brought without leave were a nullity or whether the situation could be remedied by a subsequent grant of leave.  Counsel contended that in this case it was necessary to consider the ambit of the immunity conferred by Article 50.  The words defining the limits of the immunity were to be found in Article 50(1).  Article 50(2) provides that "no civil proceedings shall be brought against any person in respect of any such act ..." (my emphasis).  The act to which reference is made is set out in Article 50(1) - "No person shall be liable .... in respect of any act purporting to be done in pursuance of this Law ...".  The core question was what was meant by the phrase "act purporting to be done in pursuance of this Law". 

10.      It is clear that the class of acts conferring immunity does require definition.  Even in Seal, the order of the district judge striking out the whole of the proceedings was varied on appeal to the County Court by the reinstatement of that part of the claim that did not relate to the police's purported exercise of power under section 136 of the Mental Health Act, i.e. the removal of Mr Seal to a place of safety. 

11.      Mr Le Quesne stated that the plaintiff's claim was based on a breach of the Minister's duty of care towards him.  The Minister knew that he was liable to seek to escape yet provided an insecure recreation area with a dangerous escape route.  Counsel conceded that the nature of the claim was such that leave would probably have been granted if applied for, but contended, nonetheless, that leave was not required.  Placing the plaintiff in a potentially dangerous position could not be regarded as an act pursuant to the Law; it was merely one of the many incidents of the detention.  Suppose, for example, that the stairs had been in a dangerous condition and had collapsed as the plaintiff made use of them.  It could not be said, counsel contended, that failing to maintain a safe environment for patients was an act pursuant to the Law. 

12.      I interpose to state that an omission to do something must be embraced by the immunity conferred by Article 50 to the same extent as an act.  In part 1 of the schedule to the Interpretation (Jersey) Law 1954, "act" is defined to include an omission. 

History of equivalent immunity in English law

13.      The immunity conferred by Article 50 of the 1969 Law is based upon very similar provisions in the English Mental Health Act 1959, and it is helpful to consider the legislative history of the equivalent English section.  That history is encapsulated at paragraphs 8 - 11 of the judgment of Lord Bingham of Cornhill in Seal-v-Chief Constable of South Wales and I gratefully adopt it:-

"8.      The legislative history may be taken to begin with the Lunacy Acts Amendment Act 1889.  Section 12(1) rendered any person acting in pursuance of the Act immune from civil or criminal liability in any proceedings 'whether on the ground of want of jurisdiction, or on any other ground, if such person has acted in good faith and with reasonable care.'  Subsection (2) of the section gave teeth to this provision by enabling any person made the subject of proceedings as a result of anything done in pursuance of the Act to make summary application to a judge of the High Court who might (and in practice would be bound) to stay the proceedings if satisfied that there was no reasonable ground for alleging want of good faith or reasonable care.  This provision was consolidated in the Lunacy Act 1890.  It plainly afforded the defendant an important measure of substantial protection at trial.  But if a defendant sought protection before trial the initiative rested with him: an action brought without reasonable ground for alleging want of good faith or reasonable care would proceed to trial unless he applied to stay it. 

9.        Section 16 of the Mental Treatment Act 1930 replaced and altered the 1890 provision.  Subsection (1) preserved the immunity of those acting pursuant to the Act save where they had acted in bad faith or without reasonable care.  But it was no longer provided that a defendant should seek a stay if an action were brought without reasonable ground for alleging want of good faith or reasonable care.  Instead, subsection (2) introduced new conditions: that no proceedings, civil or criminal, might be brought against any person in any court in respect of anything done in pursuance of the Act without the leave of the High Court; and that such leave should not be given unless the court was satisfied that there was substantial ground for the contention that the person, against whom it was sought to bring the proceedings, had acted in bad faith or without reasonable care.  Thus the obtaining of leave appeared to be a pre-condition of bringing proceedings. Section 16(1) and (2) of the 1930 Act were repealed and replaced in the Mental Health Act 1959, by section 141(1) an (2), which reproduced the effect of the subsections, subject to the differences of wording.  Thus it remained necessary to obtain the leave of the High Court before bringing civil or criminal proceedings in respect of anything done in pursuance of the Act, and the condition to be met to obtain leave remained the same. 

10.      Section 60 of the Mental Health (Amendment) Act 1982 made no amendment to section 141(1) of the 1959 Act.  Thus the qualified immunity of those acting pursuant to the Act was preserved.  But section 141(2) was amended in two respects.  First, while leave to bring civil proceedings in relation to anything done pursuant to the Act had still to be obtained from the High Court, leave to bring criminal proceedings had now to be obtained from the Director of Public Prosecutions.  Secondly, the ancillary requirement that leave should not be given unless the court was satisfied that there was substantial ground for the contention that the putative defendant had acted in bad faith or without reasonable care was omitted, in relation to both civil and criminal proceedings.  Section 141(1) and (2), as amended in 1982, were consolidated as section 139(1) and (2) of the 1983 Act which the House is now asked to construe. 

11.      The 1982 Amendment and the 1983 consolidation were preceded by two official reviews, the first ('A Review of the Mental Health Act 1959') published by the Department of Health and Social Security in 1976 and the second ('Review of the Mental Health Act 1959') published by that department, the Home Office, the Welsh Office and the Lord Chancellor's Department in 1978 (Cmnd 7320).  Both those reviews considered the effect of section 141(1) and (2) in its pre-1982 form, as did a MIND report written by Dr Larry Gostin entitled 'A Human Condition'.  From these documents a number of things are clear.  It was well known that the requirement of leave in section 141(2) was criticised as unduly restrictive, ill-directed (because not directed to litigants who had shown themselves to be vexatious) and unjustified by the very small number of applications for leave made each year.  But it was also known that staff working with mental patients were anxious about their legal position and the protection available to them.....".

14.      It will be seen that the only distinction between the immunity in Article 50 of the 1969 Law and the equivalent provision in the 1959 Act upon which it was based, was that in England the court was required to be satisfied that there was substantial ground for the contention that the prospective defendant had acted in bad faith or without reasonable care, whereas in Jersey the test was whether there was a prima facie case.  In England this ancillary requirement for the granting of leave was abandoned entirely in 1982. 

Discussion

15.      The purpose of the statutory immunity and the requirement to obtain leave before commencing proceedings seem quite clearly to have been the protection of staff working with mental patients from having to face the stress of baseless accusations in court.  Such staff have to deal physically with mental patients almost every day of their working lives.  As Ouseley J expressed it when Seal was before the Court of Appeal [2005] EWCA 586 at paragraph 36:-

"Here, the common purpose of both the civil and criminal proceedings bar is to protect those whose duties require them to deal with mental patients from the harassment and distress which such people can cause, intentionally or otherwise, through civil or criminal proceedings, unless those proceedings have first passed through a merits test assessed by the High Court or the DPP as the case may be;"

16.      Sir John Donaldson MR made the same point in Winch-v-Jones [1986] QB 296 at 305 when he stated:-

"...S.139 protects the defendant unless and until the applicant obtains leave.  This in itself is an added protection of considerable value [over and above the ordinary strike out provisions].  As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of the process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the [Mental Health] Acts."

17.      An example of the application of the principle was Pountney-v-Griffiths [1976] AC 314 where the applicant was a male nurse at Broadmoor Special Hospital.  He was on duty while patients were saying goodbye to visitors.  He approached the detained patient, telling him to "come on" and allegedly punched him on the shoulder.  The patient brought criminal proceedings for assault without first obtaining leave.  The applicant was convicted and applied for certiorari to quash the conviction on the ground that, as no leave had been obtained, the proceedings were a nullity.  The Divisional Court quashed the conviction and that ruling was upheld by the House of Lords. 

18.      The certified question on appeal to the House of Lords was "whether an alleged criminal assault by a nurse on duty and in the course of exercising functions of controlling a patient in a mental hospital .... may be an act purporting to be done in pursuance of the Mental Health Act 1959 so as to attract the provisions of s.141 of that Act".  All members of the House accepted the view of Lord Widgery CJ who had given the judgment of the Divisional Court that:-

"...where a male nurse is on duty and exercising his functions of controlling the patients in the hospital, acts done in pursuance of such control, or purportedly in pursuance of such control, are acts within the scope of s.141, and are thus protected by the section."

19.      Counsel for the plaintiff did not demur from the conclusion in that case.  He submitted, however, that the immunity granted by Article 50 did not remove all the civil rights of patients who were detained under the 1969 Law.  Every day acts, he contended, should not be regarded as "acts purporting to be done pursuant to this Law".  Counsel gave three examples:-

(i)        A patient was raped by a doctor or by another patient - a crime not involving bad faith or negligence;

(ii)       A patient bought a book for £20 from the hospital shop and later found that pages were missing - a defect of consent in the contract of sale;

(iii)      The hospital published details of the patient's medical records - a breach of the Data Protection Law. 

I would accept that a rape committed by another patient could not be regarded as being done pursuant to the Law.  But how can one distinguish an alleged rape committed by a doctor from an alleged assault committed by a nurse?  It would seem to me that both involve bad faith and would, on the face of it, require the consent of the Superior Number before proceedings could be instituted.  Whether the sale of merchandise in the hospital shop could be regarded as being done pursuant to the 1969 Law is perhaps more open to doubt, and the publication of details of medical records must depend upon the circumstances of the publication. 

20.      Mr Le Quesne criticised the breadth of the immunity contended for by the Minister.  Counsel for the Minister had submitted that the purpose of Article 50(2) was to provide a filter and to protect all persons dealing with mentally disordered persons from litigation by them.  Mr Temple had drawn attention to the definition of "hospital" in the 1969 Law, which clearly embraced Orchard House.  Article 3(2) provided for the Minister to make arrangements for the care of persons suffering from mental disorder, including the provision, equipment and maintenance of residential accommodation, the provision of centres or other facilities for the training, occupation and employment of such persons, the promotion of better care and treatment of such persons and their welfare.  Mr Temple had submitted that Article 50 was very broad in its terms.  Did this mean, Mr Le Quesne asked rhetorically, that once a patient had been detained everything that happened to him thereafter was "done in pursuance of this Law"?  Suppose a patient in the General Hospital was affected by radio-activity seeping from faulty machinery in the Oncology Unit.  Did his ability to pursue the Minister depend upon whether he was an orthopaedic patient or one detained in a mental ward?  Counsel submitted that in a public health context, there was product liability without fault.  If a product failed, and caused damage to a patient, did the ability to sue depend upon the ward in which he was being treated?  Suppose that the hospital negligently failed to keep their premises in reasonable condition, and the mental patient fell down a defective and dangerous staircase, suffering grave injury as a result.  Was that omission "in pursuance of the Law" so that the patient could not sue without the leave of the Superior Number?  Counsel submitted that a narrow purposive construction of the immunity conferred by Article 50 was to be preferred. 

21.      Similar arguments found favour with the dissenting minority in Seal.  Indeed, Lord Woolf considered that, notwithstanding the requirement for leave, Parliament did not intend that proceedings commenced without leave were to be a nullity.  He stated at paragraph 35:-

"This being the case as a matter of fundamental principle, the Appellant's access to the courts cannot be denied without a judge determining whether this is the appropriate consequences in all the circumstances.  For this purpose the judge to whom I refer is a High Court judge since it is only a High Court judge who has power to give leave."

22.      Baroness Hale also considered the question of access to justice to be the fundamental principle.  She pointed out that access to the courts is protected in England, as it is in Jersey, by Article 6 of the European Convention on Human Rights.  In Ashingdane-v-United Kingdom (1985) 7 EHRR 528 the European Court of Human Rights stated at paragraph 57:-

"Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication, since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals'... Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.  Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

23.      Baroness Hale, being referred to that passage, stated at paragraph 57 in Seal:-

"To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued.  To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims.  But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant.  There are some compulsory patients who suffer from paranoid delusions; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble.  But the blanket restriction in section 139(2) takes no account of these subtleties.  It assumed that everyone who has ever been subject to Mental Health Act compulsion is automatically suspect.  This is not only empirically unproven.  It certainly cannot be taken for granted when Mental Health Act powers may be exercised by people with no mental health expertise whatsoever.  On the one hand, therefore, section 139(2) goes too far.  On the other hand, however, it may not go far enough, because it is limited to acts done in pursuance of the Mental Health Act itself.  If certain mental patients are ex hypothesi vexatious litigants, then people who exercise authority over them otherwise than under the Mental Health Act may also deserve protection."

24.      Mr Le Quesne contended that all these considerations militated against a broad interpretation of Article 50.  Why should a failure by the Minister to provide a safe and appropriate system of care for mentally disordered patients such as the plaintiff shut him out from access to justice unless he obtained the leave of the Superior Number?  The purpose of the immunity was clearly to protect professional people working with mental patients from unmeritorious claims and from anxiety that they might be harassed by litigation.  As Baroness Hale expressed it at paragraph 48 in relation to the United Kingdom Government's white paper which lead to the enactment of the Mental Health Act 1982:-

"Thus, while the Government acknowledged that there were very few litigious patients against whom the staff required protection, it was understandably anxious that staff should not be subjected to baseless claims.  There was a concern that staff would otherwise be deterred from doing their job properly and acting in the best interests of the patients themselves."

The statutory provision was not designed to assist the Government to avoid litigation. 

Conclusion

25.      I have a great deal of sympathy for the arguments of counsel for the plaintiff.  If a purposive approach were adopted, there seems little reason to exculpate the Minister on a technical ground.  I accept the submission that the immunity given by Article 50(1) and the gateway in Article 50(2) should be narrowly and strictly construed.  The words of Viscount Simonds in Pyx Granite cited at paragraph 8 above seem to me to be an incontrovertible guiding light:-

"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words".  

The plaintiff's difficulty is that the exclusionary words could hardly be clearer.  "No person shall be liable .... to any civil .... proceedings .... in respect of any act purporting to be done in pursuance of this Law ..." and "no civil .... proceedings shall be brought against any person in respect of any such act without the leave of the Superior Number of the Royal Court ...".  Article 3 of the 1969 Law sets out the functions of the Minister in relation to the Law.  They include making arrangements for the care of persons suffering from mental disorder, including the provision of residential accommodation and "the care of persons for the time being resident in accommodation so provided."  The Minister owed a duty of care to the plaintiff, but that duty was qualified by the immunity conferred by Article 50(1).  The only way to overcome that immunity was by seeking leave from the Superior Number pursuant to Article 50(2).  The plaintiff failed to seek such leave, and in such circumstances, the Court has no jurisdiction to hear the plaintiff's suit.  The relief sought by the Minister must accordingly be granted, and the proceedings instituted by the plaintiff by Order of Justice are declared null and void and dismissed. 

Postscript

26.      I do not reach the conclusion set out above without considerable misgivings.  I doubt that it is a just conclusion.  The plaintiff has suffered a serious injury and certainly has an arguable case for redress, even if it is by no means an open and shut case.  It seems to me unfortunate that reliance has been placed upon a statutory provision which, arguably, was not designed for the purpose for which it has been employed.  Even if it was so designed, it seems to me that the extremely wide immunity conferred by Article 50 is no longer justifiable.  Staff working with mental patients no doubt need protection and the comfort given by an immunity from suit other than where a judge has given leave to a patient to institute proceedings.  There seems to me, however, no justification for the immunity to extend to the state.  The Minister has no need of the protection afforded by Article 50(1) and ought to be prepared to defend the occasional suit by a patient on its merits.  At the very least, if the immunity is to remain, the judicial power to grant leave should be unfettered.  The Court has previously urged reform of other provisions of the 1969 Law - see AG-v-O'Driscoll [2003] JLR 390 at 404, AG-v-Le Blanq [2003] JRC 165, AG-v-Harding [2009] JRC 198 at paragraph 40, and AG-v-Highfield [2009] JLR N 24 - all to no avail.  It may be therefore that these words will be mere chaff upon the wind, but I do nonetheless urgently recommend that consideration be given by the Minister to the reform of statutory provisions that are in my view out of date and unfair. 

Authorities

Mental Health (Jersey) Law 1969.

Seal-v-Chief Constable of South Wales [2005] EWCA Civ 586 (CA).

Seal-v-Chief Constable of South Wales [2007] UKHL 31 (HL).

Mental Health Act 1983.

Interpretation (Jersey) Law 1954.

English Mental Health Act 1959.

Winch-v-Jones [1986] QB 296.

Pountney-v-Griffiths [1976] AC 314.

Ashingdane-v-United Kingdom (1985) 7 EHRR 528.

Pyx Granite Co Ltd-v-Ministry of Housing and Local Government [1960] AC 260,286.

Mental Health Act 1982.

AG-v-O'Driscoll [2003] JLR 390.

AG-v-Le Blanq [2003] JRC 165.

AG-v-Harding [2009] JRC 198.

AG-v-Highfield [2009] JLR N 24.