Dervan v Moran

JudgeMr Justice Kelly
Judgment Date25 June 2002
Neutral Citation2002 WJSC-HC 1425
Date25 June 2002
CourtHigh Court
Docket Number138 I.A./2001

2002 WJSC-HC 1425


138 I.A./2001
ACT, 1945







Medical profession

Compulsory hospitalisation - Doctors - Application to initiate proceedings proceeding under Mental Health Act - Reasonable care - Whether doctors exercised reasonable care - Mental Health Act, 1945, section 260 (2001/1381A - Kelly J - 25/06/2002)

Dervan v Moran

Facts: The application was initiated by the applicant for consent to issue proceedings against the respondents for their decision to have him compulsorily hospitalised in 1998.

Held Mr Justice Kelly reviewed all the allegations against the respondent and concluded that both doctors acted in a proper fashion none of the allegations of lack of exercising reasonable care had been substantiated. Leave to commence proceedings refused. Murphy v Green [1990] 2 IR 581 followed

Mr Justice Kelly

Mental illness is an unfortunate fact of life. It can be very distressing for patients, their families and medical professionals who are involved in dealing with it.


For many years the legislature has recognised that on occasions it is necessary that persons who appear to be suffering from mental illness have to be compulsorily detained in a mental hospital for their own good. Compulsory removal to, and detention in a mental hospital is very often accompanied with great upset and strain. Such distress is not limited to the patients and their families but must often be caused to the doctors who are involved in such a process.


Medical practitioners have been given enormous powers by the legislature insofar as the compulsory hospitalisation of mentally ill people is concerned. It is right therefore that the court should be astute in ensuring due compliance with the correct statutory procedures and proper observance of the safeguards which are prescribed in such circumstances. Access to the courts by persons who are compulsorily hospitalised is ensured through the habeas corpus and judicial review procedures and courts are careful to ensure the proper compliance with all of the statutory provisions and safeguards.


Medical practitioners involved in cases of compulsory hospitalisation need a measure of protection in that regard; Hence the provisions of section 260 of the Mental Treatment Act of1945. In this regard the observations of McCarthy J. in Murphy -v- Greene [1990] 2 IR 581 are apposite

"When a medical practitioner is called in to deal with a situation such as existed on the night in question the law does not require a standard of precision such as might be appropriate to other aspects of medical practice. It is for that very reason - the urgency, the danger to others, and like circumstances that the limited statutory protection is afforded to a medical practitioner doing an act purporting to have been done in pursuance of the Act of 1945. The standard of reasonable care under the Act may be quite different from such standard in ordinary medical practice".


Section 260 of the Mental Treatment Act,1945provides as follows:


2 "(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of the Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.


(2) Notice of an application for leave of the High Court under subsection (i) of this section shall be given to the person against whom it is proposed to institute the proceedings and such person shall be entitled to be heard against the application.


(3) Where proceedings are, by leave granted in pursuance of subsection (i) of this section, instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care".


The present application was initially pursued alleging both lack of reasonable care and bad faith. Over the lunchtime interval however, the applicant withdrew the allegation of bad faith against both respondents. I need only concern myself therefore with the allegations of lack of reasonable care.


I am concerned here with the events of November, 1998 when there was already a good deal of strain and upset in the applicant's marriage. Happily those difficulties have now been resolved. The marriage is now a happy one and two further children have been born since the events of November, 1998. In these circumstances I might comment that perhaps it would have been more prudent not to proceed with this litigation with a view to ensuring the happiness of all concerned. That is particularly so in circumstances where it was the applicant's wife who requested the assistance of the respondents and she is herself a professional colleague of both of the respondents. However, whether to proceed or not with the application is a matter entirely for the applicant. He has chosen to do so and it therefore falls for me to decide the application.


There has been quite an exchange of affidavits but it is not necessary to rehearse them all in detail. It has been possible to narrow down the allegations against both respondents. I will deal with the allegations in the same order as they have been mooted by counsel for the applicant.


Dr Moran is a general practitioner and has considerable experience as such. She was the family general practitioner for the applicant and his wife. She has a significant number of postgraduate qualifications, amongst which is a membership of the Royal College of Physicians.


Dr Cahill is a non-consultant hospital doctor and qualified as a doctor twenty seven years ago. She also has a postgraduate membership of the Royal College. Both doctors are very experienced in the practice of medicine. I will deal with each doctor individually in respect of the allegations of want of reasonable care.


1. The first allegation against Dr Moran is that she has no particular psychiatric medical expertise. She should therefore not have certified the applicant as she did, it is said. All that is required under the relevant legislation is that the certifying doctor should be a registered medical practitioner. The Act provides for certain categories of doctors who are disqualified from granting such a certification. This is contained in section 9 of the 1961 Act.


It provides:

"A registered medical practitioner shall, for the purposes of this section, be disqualified in relation to a person - "

(a) If such a practitioner is interested in the payments (if any) to be made on account of the taking care of the person

(b) If such practitioner is the husband or wife, father, stepfather or father-in-law, mother, stepmother or mother-in-law, son, stepson or son-in-law, daughter, stepdaughter or daughter-in-law, brother, stepbrother or brother-in-law, sister, stepsister or sister-in-law, or guardian or trustee of the person or

(c) If such practitioner is a medical officer of a district mental hospital".


Dr Moran does not fall into any of these categories. She is an experienced General Practitioner and has experience of mental illness in that role. The allegation of lack of appropriate qualification and experience as being demonstrative of a lack of reasonable care has no prospect of success at trial. Dr Moran was well qualified to carry out the task which she did and I discount in its entirety this allegation.


2. The second allegation is that there was an insufficient and inappropriate examination carried out by Dr Moran.


Dr Moran was at the family home for three and a half hours on the 9th November (from 7.00 to 10.30 p.m.) and returned the following day. Her notes are very comprehensive and clear and record the story of what occurred. They are as follows:

"9/11/98: Called to house on 8/11/98 at 7.00 p.m. Wife upset - stated Liam had taken children from the house earlier that day and then returned. He then again took the children from the house against her wishes - he had pushed her from the car and drove across the lawn of the house. She rang the...

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