Bailey v Gallagher

• Jurisdiction: Ireland
• Judge: Keane J.,O'Flaherty J.
• Judgment Date: 23 May 1996
• Neutral Citation: 1996 WJSC-SC 56
• Docket Number: 291/90
• Court: Supreme Court
• Date: 23 May 1996

B (J) v. G (P)

IN THE MATTER OF THE COURTS OF JUSTICE ACTS 1924– 1961

AND IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS)ACT 1961– 1981 AND IN THE MATTER OF AN INTENDED ACTION

BETWEEN:

J B

Plaintiff/Appellant

AND

P G

Defendant/Respondent

1996 WJSC-SC 56

291/90

THE SUPREME COURT

Synopsis:

LUNACY

Husband

Examination - Detention - Authority - Absence - Applicant husband examined by general medical practitioner - Practitioner issued certificate stating that he was of the opinion that applicant suffered from mental illness - Applicant taken into custody and detained by gardai for two hours - Subsequent examination of applicant by consultant psychiatrist - Consultant found no psychiatric disorder or grounds for admission of applicant to hospital - Applicant sought leave of High Court to institute action against medical practitioner - Appeal against refusal to grant such leave - Appeal allowed - Mental Treatment Act, 1945 (No. 19), ss. 184, 260 - (291/90 - Supreme Court - 23/5/96)

|B. v. G.|

WORDS AND PHRASES

"Substantial grounds"

Mental treatment - Patient - Hospital - Admission - Procedures - Certificate of general medical practitioner that patient required treatment in hospital - Patient taken into custody by gardai after date on which admission to hospital could be effected in reliance on practitioner's certificate - Patient detained by gardai for two hours - Whether substantial grounds for contending that practitioner failed to exercise reasonable care - (291/90 - Supreme Court - 23/5/96) - [1996] 2 ILRM 433

|B. v. G.|

Citations:

MENTAL TREATMENT ACTS

MENTAL TREATMENT ACT 1945 S260(1)

MENTAL TREATMENT ACT 1945 S184

MENTAL TREATMENT REGS 1961 SI 261/1961

MENTAL TREATMENT ACT 1945 S184(4)

MENTAL TREATMENT ACT 1945 S169

MENTAL TREATMENT ACT 1945 S165(i)

MENTAL TREATMENT ACT 1961 S8

MENTAL TREATMENT ACT 1953 S5

MENTAL TREATMENT ACT 1945 S260

O'DOWD V NORTHWESTERN HEALTH BOARD 1983 ILRM 186

LUNACY ACT 1890

MENTAL HEALTH ACT 1983 S139 UK

MURPHY V GREENE 1990 2 IR 566

COMPANIES ACT 1963

COURTS OF JUSTICE ACTS 1924 – 1961

COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961 – 1981

1 Judgment of O'Flaherty J.delivered on the 23rd day of May, 1996

2 I have read the judgment that Keane J. will deliver and I agree that the plaintiff should be granted leave to issue the requisite proceedings. The only aspect of the case that gave me pause was the fact that the certificate signed by the defendant was spent when it got into the hands of the gardai and that if the defendant was found to be wanting in care in that respect his negligence was ofa variety to be dealt with on ordinary principles of negligence and not arising under the Mental Treatment Acts. However, I am persuaded that the detention of the applicant was sufficiently linked with the issue of the certificate to justify granting the appropriate leave to institute proceedings, but I pass no comment on the substantial merits of the caseotherwise.

3 Judgment 209

4 JO'F - DO'C

5 Judgment delivered the 23rd day of May, 1996by Keane J. [murphy care]

6 This is an appeal by the Plaintiff from an Order of the High Court made on the 12th July 1990 refusing him leave to issue proceedings against the Defendant in the Circuit Court claiming damages for negligence and/or false imprisonment and/or defamation. The Defendant is a medical practitioner who signed a certificate under the Mental Treatment Act 1945 (hereinafter "the 1945 Act") for the reception and detention of the Plaintiff as an involuntary patient in St. Finan's Hospital, Killarney. Since the causes of action relied on by the Plaintiff were alleged to have arisen out of the exercise by the Defendant of hispowers and duties under the 1945 Act, the leave of the court was required by Section 260 (1) of the 1945 Act for the institution of suchproceedings.

The Facts

7 The Plaintiff and his wife had been attending the Defendant, who is a general practitioner in since the 18th April 1988. On that day, the Plaintiff's wife attended at the Defendant's surgery with her arm in a sling following a shoulder injury which she alleged had been caused by the Plaintiff. (This was denied by the Plaintiff in a subsequent affidavit). The Plaintiff's wife told the Defendant that the Plaintiff was overactive, had been sleeping very little and was not working effectively. In addition he had developed a tendency for over borrowing and was ineffective in his business. She asked the Defendant to see the Plaintiff which he did on the afternoon of the same day. The Defendant said that he spent approximately an hour with the Plaintiff and observed him to be "very stressed" and that his thought processes appeared to be working at "excessively high speed". He said that he formed an initial view that the Plaintiff might be "hypomanic" and that he told him that there was a possibility that he would require psychiatric assessment and medication. The Plaintiff, for his part, denied that the Defendant told him at that stage that he [the Plaintiff] needed psychiatric assessment. The Plaintiff and the Defendant were, however, in agreement in their affidavits that the Defendant proposed to carry out a thyroid test on the 20th April, a test which subsequently provednegative. The Defendant said that the purpose of this test was to rule out any physical cause for what he considered the apparent "over activity of the Plaintiff". The Defendant said that he saw the Plaintiff on a number of occasions between the 18th April 1988 and the 21st May 1988, each consultation being prolonged and some taking from one and a half to two hours.

8 The Defendant gave evidence in his affidavit of a number of instances of what he considered to be aggressive or bizarre behaviour on the Plaintiff's part at these consultations. These included an assertion by the Plaintiff that "five men would not stop him if he wanted to attack me [the Defendant]"; his carrying large stones in the back of the car; and his lying stretched out in the Defendant's waiting room when the Defendant went to call him for his appointment. He said that the Plaintiff's wife had advised him that he [the Plaintiff] attached some special significance to the stones in relation to the supernatural. He said that the Plaintiff's wife also said that she was physically afraid of the Plaintiff during that period. He also said that the Plaintiff admitted to him on the 20th April that he had suffered from depression in November/December 1987 and from all these factors the Defendant concluded that the Plaintiff might be suffering from a manic depressive disorder. He said that he was in constant contact with the Plaintiff's wife during the period from 18th April 1988 until 18th May 1988 and also spoke to members of the wife's family who expressed their concern about the Plaintiff's behaviour and sanity.

9 The Defendant said that he had a further consultation with the Plaintiffand his wife in his surgery on the 12th May 1988 and indicated that he was willing to see them as often as was possible in order to resolve any problems that the Plaintiff was encountering. He said that the Plaintiff was "negative" in response and that he [the Defendant] therefore suggested that the Plaintiff should see a psychiatrist and abide by his decision or recommendation. He said that the Plaintiff and his wife agreed to this proposition.

10 The Plaintiff said that he only attended at the Defendant's surgery on four occasions in all. He said that at this stage he and his wife were having difficulties in their marriage and he discussed these problems with the Defendant in the first week of May and again on the 12th May when he was accompanied by his wife. He said that at this last meeting the Defendant said that he was not competent enough to deal with the matrimonial problems and suggested that both the Plaintiff and his wife should go to somebody who could deal with their type of problem. He denied that he had exhibited the bizarre or aggressive symptoms of which the Defendant gave evidence and said that, while he carried stones in his car these were for the purpose of a rockery which he was building and that, while he had stretched out on a couch while waiting for an interview with the Defendant, this was because of a back and hip condition from which he suffered. He denied that he was ever a patient of the Defendant and said that he only attended him with his wife for the purpose of discussing his marital relations.

11 The Plaintiff and his wife were seen by Doctor Brendan Lynch, aconsultant psychiatrist attached to St. Finan's Hospital, at his consulting rooms in his private residence on the 17th May at the Defendant's request. In the course of his referral letter, the Defendant said that both the Plaintiff and his wife were suffering from "very great mental stress" arising from "poor marital harmony and interpersonal relations" and also from the Plaintiff's financial difficulties. He also referred to the wife's concerns about the Plaintiff's mental health and similar concerns expressed by the Plaintiff about his wife and suggested that Doctor Lynch might be able to help with a fresh approach.

12 In an affidavit, Doctor Lynch said that at the examination on the 17th May he found the Plaintiff "extremely tense and agitated". He also said that the Plaintiff admitted that his wife had dislocated her shoulder some months previously following an assault by him but said that this was "accidental" and had resulted from a push. The Plaintiff's wife told Doctor Lynch that she was so fearful of the Plaintiff that she would not travel to or from the consultation with him and gave an account of his alleged symptoms broadly similar to that which had been given to the Defendant.

13 Doctor Lynch summed up his opinion as follows

"The history of insomnia, overactivity, aggressive behaviour, restlessness, agitation and irrational behaviour was indicative of a psychotic illness, probably...