Cloonan v The Health Service Executive

JudgeMs. Justice Power
Judgment Date03 June 2022
Neutral Citation[2022] IECA 129
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2018/423
Angelo Cloonan
The Health Service Executive and Dr. Kishan Browne

[2022] IECA 129

Faherty J.

Ní Raifeartaigh J.

Power J.

Record Number: 2018/423



JUDGMENT of Ms. Justice Power delivered on the 3 rd day of June 2022


1. Introduction


2. The Essential Conflict


3. The Issues on Appeal


4. The Documentary Evidence


5. Overview of Expert Evidence




6. Issue 1: The Challenge to the Plaintiff's Credibility


➢ The Legal Framework


➢ Nine Contested Issues of Fact


➢ Conclusions on Issue 1


7. Issue 2: On the Trial Judge's Material Findings of Fact


➢ The Legal Framework


➢ The Finding on the Hosepipe Incident


➢ The Finding on the Decision to Discharge


➢ Engagement with Expert Evidence


○ The Legal Framework


○ Evidence on the Predictability of Suicide


○ Evidence on the Consequences of a Brief Collateral


➢ Patient Confidentiality


➢ The Treatment Plan


➢ Conclusions on Issue 2


8. Issue 3: On Discharging the Burden of Proof


➢ The Dunne Principles


➢ The Court's Assessment


➢ The Impact of Untruthful Testimony


➢ The Court's Assessment


9. Miscellaneous Matters


10. Conclusion


11. Decision



. This is an appeal against the judgment of the High Court (Hanna J.), [2018] IEHC 454, delivered on the 27 th day of July 2018 and the subsequent order arising therefrom and made on the 3 rd day of October 2018. The proceedings were initiated by the respondent (hereinafter and for ease of reference ‘the plaintiff’) in a representative capacity, he and his three adult children being the statutory dependents of Josephine Cloonan, who died on 19 April 2011.


. The appellants are the Health Service Executive (the ‘HSE’) and Dr Kishan Browne, a psychiatrist. It is claimed that the HSE is vicariously liable for the wrongful actions of Dr Browne.


. The plaintiff claims that the death of his wife (hereinafter ‘Josephine’), by suicide, was caused by negligence and breach of duty on the part of the appellants.


. The proceedings before the High Court had several distinguishing features. First, there was a 180-degree conflict on the facts concerning the events that occurred on the day before Josephine died. The plaintiff and Dr Browne gave utterly irreconcilable evidence in this regard.


. Second, there was the disjointed and fragmented manner in which the evidence emerged and the trial advanced. Commencing on 9 November 2017 and ending on 13 March 2018, eleven witnesses—eight for the plaintiff and three for the defence—gave evidence during the trial, which lasted 14 days. In some cases, testimony was interrupted and given in a piecemeal manner, some witnesses were called and recalled, and, at one stage, matters had become so unsatisfactory that the trial judge considered abandoning the proceedings altogether. 1


. Third, there was a significant turn of events in the middle of the trial when discovery was made, belatedly, by the plaintiff. This led to serious questions of credibility arising and an accusation of perjury being levelled against him. 2 The issue of credibility was central to the two important findings of fact made by the trial judge and these two findings were material to his ultimate finding of negligence against Dr Browne.


. A fourth unusual feature of the case was the fact that the plaintiff's sworn oral testimony departed significantly from his pleadings which he had also sworn, on affidavit, to be true. Thus, whereas he had pleaded, inter alia, that Josephine's overdose occurred against a background of marriage breakdown, recent alcohol misuse, and financial stress, these were matters in respect of which he made vehement denials at trial. Moreover, his affidavit of verification in respect of his pleadings was sworn at a time after he had given his sworn oral testimony to the court.

The Essential Conflict

. Although there were 11 witnesses in total, the central conflict on the facts in the case arose between the plaintiff and Dr Browne as to what had occurred on the morning of 18 April 2011 after Josephine's admission the previous evening to Galway University Hospital's Accident and Emergency Department (hereinafter ‘A & E’) following an overdose. The testimony of the plaintiff's son and one of his daughters was generally supportive of his position although neither of them was in the interview room when Josephine was assessed by Dr Browne, nor when she was interviewed, again, in the company of the plaintiff. Leaving to one side the case as pleaded, the core of the plaintiff's oral testimony when he was first called to the witness box may be summarised as follows.


. On foot of her attempted suicide by overdose, Josephine was assessed by Dr Browne for ‘ [a]bout 20 minutes, maybe 25 minutes at the most, about 20 minutes really’. 3 The assessment started at 10:50. Josephine was totally confused at the time and did not understand what was going on. 4 She told the doctor things that were completely untrue. She said that there had been a break up in the marriage. That was not true. She told Dr Browne that he, the plaintiff, had a history of child sexual abuse. That definitely was not true; in fact, the plaintiff stated: ‘ Where that came from I don't know.’ 5 She had told Dr Browne about financial stress. That was not true. There were ‘ no financial stressors at all’. 6 Dr Browne had noted ‘ recent alcohol misuse’. 7 That was not true. Josephine was a ‘ social drinker’. 8 Dr Browne had noted down everything Josephine said and he believed, wrongly, that it was true.


. The plaintiff claimed that he did not know anything about a previous suicide attempt involving a hosepipe and the car. He did find a hosepipe in the boot of the car, but he never ‘ put two and two together’. 9 In a joint interview with Dr Browne and Josephine, he asked Dr Browne to admit Josephine to hospital, to ‘ keep her in’, but Dr Browne ‘ fobbed [him] off’ and refused. 10 Dr Browne never spoke to him on his own, but brought him into the interview room later. 11 The whole process lasted ‘ about’ 30 to 35 minutes of which he was there for 10 or 15 minutes. 12


. The interview finished at about 12:00. 13 Dr Browne wrote down a phone number for the day hospital. 14 They had no choice but to go home. Dr Browne's assessment of the interview was ‘ a fabrication’. 15


. Dr Browne, on the other hand, confirmed the content of his assessment notes, and his testimony may be summarised thus. He had spoken to Josephine for up to an hour and 15 minutes on her own and he had taken detailed contemporaneous notes of that meeting. 16 Josephine did not lack capacity. She came willingly for review and was forthcoming in discussion. She had insight into her problems and, whilst tearful at times, disclosed, openly and coherently, significant details about the stressors in her life which led to the overdose. These included the revival of the issue of historical child sexual abuse which she and her sister had suffered, the recent breakup with her husband, and some financial stress. She admitted to drinking ‘ a few cans of beer’ on the morning of the Sunday on which she overdosed. 17 She had a previous episode of self-harm about four weeks earlier. She had put a hosepipe to the exhaust of the car and closed the window. She didn't start the car. She changed her mind as she could not cause hurt to her children. She forgot to disconnect the hosepipe and her husband had found it later. 18 She said that the overdose was ‘ impulsive’. 19 She was very remorseful and regretted what happened. Her mood, Dr Browne noted, was ‘ normothymic’ or ‘ normal’ and her being tearful at times indicated to him a degree of distress at the time. 20 There was no suicidal ideation evident and Josephine denied any current thoughts of self-harm. 21 He discussed inpatient care with Josephine, and she declined the offer, but she agreed to accept treatment as a patient in the day hospital. 22 In the Liaison Psychiatry Referral Book he had recorded her referral to the day hospital as ‘ [u]rgent’. 23


. Dr Browne testified that he then left Josephine and had a meeting with the plaintiff on his own, which lasted some five to seven minutes. For reasons of patient confidentiality, he did not go into detail but he wanted to ascertain in broad terms whether Josephine had given an accurate account. 24 He asked the plaintiff whether he was aware of the reason for Josephine's presentation, whether he had found the hosepipe that she had mentioned, and whether there had been a separation. 25 Having established to his satisfaction that the information he received from the patient concurred with that given by the next-of-kin, he then invited the plaintiff back to the interview room to discuss the situation further. 26 Back in that room, they discussed a number of things, starting with his offer of inpatient care to Josephine and her not being happy to come into hospital but being happy to attend day hospital instead. 27 He said that the plaintiff wanted to know what the day hospital entailed and that they had ‘ a long discussion’ about what was available there, including relationship counsellors, anxiety management, as well as specific counselling for abuse. 28 He gave them the telephone number of the psychiatric ward, ‘Station B’, which was available to call 24/7. 29 He said he wanted Josephine to go straight away to Station B if there were difficulties. 30 On this basis, they were happy for Josephine to go home. The entire process took approximately two hours. 31 Afterwards, he met the plaintiff's son, briefly, on...

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