O'Dowd v North Western Health Board

CourtSupreme Court
Judgment Date01 January 1983
Neutral Citation1982 WJSC-SC 2426
Docket Number(4/81)
Date01 January 1983

1982 WJSC-SC 2426


O'Higgins C.J.

Henchy J.

Griffin J.




JUDGMENT delivered on the 16th day of July 1982by O'HIGGINS C.J.


This is an appeal by the North Western Health Board against an Order made in the High Court by Mr. Justice Costello under the provisions of Section 260 of the Mental Treatment Act 1945granting to the Respondent leave to institute civil proceedings against the Board for damages for assault, battery and false imprisonment. The claim which the Respondent seeks to pursue arises out of his reception and subsequent detention in St. Columba's Psychiatric Hospital, Sligo, in the month of September 1980.


The Mental Treatment Act 1945is a comprehensive statute providing for the treatment of mental disturbance and the care of persons suffering therefrom. When theconstitutionality of certain of its provisions was challenged in 1950 the Act was referred to in the following terms by the late Mr. Justice O'Byrne, giving the judgment of the former Supreme Court:

"The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of the draughtsmen when it was proclaimed in Art. 40, 1, of the Constitution that, though all citizens, as human beings, are to be held equal before the law, the State may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others."


(See In re Philip Clarke I.R. 1950 at 247).


Part XIV of the Act deals with the procedure and powers for the reception and detention of a person as being of unsound mind. It is only necessary to refer tosome relevant Sections. By Section 162 an application for a recommendation for such reception may be made to an authorised medical officer at the request, inter alia, of the wife of such a person. By Section 163 the authorised medical officer on receipt of such application must, within twenty-four hours, visit and examine the person concerned and, if satisfied that it is proper to do so, may make the recommendation. The Section also provides that the recommendation shall contain a certificate to the effect that the person is unlikely to recover within six months from the date of such examination. By Section 171 the Resident Medical Superintendent of the Hospital to which the person is brought pursuant to such a recommendation is empowered, if satisfied following, a further examination at the hospital, that the person is of unsound mind, to order that he be detained therein as such a person.


In Part XVI Section 220 provides that any relative or friend of a person detained may apply to the person in charge of the institution to allow him to take careof the person so detained, and the person so in charge may, if he so thinks fit and is satisfied that the detained person will he properly taken care of, discharge that person.


Part XIX of the Act deals with miscellaneous provisions and in Section 260 provides as follows:


2 "260 (1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this 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 sub-section (1) 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 sub-section (1) 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 thedefendant acted in bad faith or without reasonable care."


On the 8th December 1980 the Respondent in this appeal having duly applied to the High Court pursuant to Notice of Motion, obtained an Order under the provisions of Section 260 granting him liberty to issue proceedings for assault, battery and false imprisonment against the Appellants. Against this Order and decision this appeal has beenbrought.


The following appear to be the relevant facts. On the 19th September 1980, the Respondent's wife applied to Dr. O'Donnell of Sligo for a recommendation that her husband be received and detained in the District Mental Hospital as a person of unsound mind. Dr. O'Donnell was an authorised medical officer within the meaning of the Act and no question arises in relation to this. At the time she so applied the Respondent was in the custody of the gardaí at Sligo following complaints from her that he violently assaulted and threatened to kill her. In the previous June, Dr. O'Donnell, following similarcomplaints, had seen and examined the Respondent and had then concluded that he was a person of unsound mind. On this occasion he saw the Respondent at the Garda Station in Sligo and was of the same opinion. Accordingly, he decided to recommend that the Respondent be received and taken under care and treated as a person of unsound mind. To this end he completed the appropriate form of recommendation and therein set out his reasons. Following this recommendation the Respondent was brought to St. Columba's Psychiatric Hospital by the gardaí. He was then very violent. He was seen and examined by Dr. Margaret O'Hara, a member of the hospital staff. During this examination he was so violent and hostile that he required sedation. Dr. Geraghty, the Resident Medical Superintendent, then made an Order under the provisions of Section 171 that the Plaintiff be received and detained in the hospital as a person of unsound mind. In so doing, Dr. Geraghty acted not only on the recommendation made by Dr. O'Donnell and the report of the examination carried out by Dr. O'Hara,but also on his own knowledge of the Plaintiff's medical condition. In the previous June he also had examined the Plaintiff and had diagnosed him as suffering from a paranoid psychosis or personality disorder.


Following the reception and detention of the Plaintiff in St. Columba's Psychiatric Hospital, an application was made on the 21st September 1980 under the provisions of Article 40 of the Constitution to Mr. Justice Barrington for his release. This application was based on two Affidavits, one from the Respondent and one from Dr. C. Bent, a medical practitioner, who had examined the Respondent on three occasions after he, the Respondent, had left his home in June and gone to reside with his brother in Dundrum, Co. Dublin. The Respondent in his Affidavit said that he was physically and mentally well. He said that following the visit by Drs. O'Donnell and Geraghty in June 1980 he feared that he might be admitted to a psychiatric hospital. For that reason he had gone to reside with his brother and had put himself under the care of Dr. Bent. Dr. Bent in hisAffidavit exhibited a medical report on the Respondent dated the 21st September 1980. From this Affidavit it appeared that on the three occasions on which Dr. Bent examined the Respondent he found him to be normal. He did, however, concede the possibility of a schizophrenic or depressive state which might only manifest itself at isolated times. It was apparently on the basis of the assertion by the Respondent that he was not mentally ill, which was supported by the medical report of Dr. Bent, that Mr. Justice Barrington granted a Preliminary Order under Article 40.4.2 of the Constitution. This Order directed the Appellants to produce the Respondent in the High Court on the 25th September and to certify in writing the grounds for his detention. It did not in fact become necessary for the Board to make the return to this Order by bringing the Respondent to the High Court on the 25th September, because on the 24th September Dr. Geraghty, being satisfied that the Respondent had sufficiently recovered to permit his so doing, discharged him into the care of his brother whohad applied for such discharge, under the provisions of Section 220 of the Act.


It is in the light of the foregoing facts that the Respondent now seeks leave under the provisions of Section 260 of the Act to sue the Appellants for damages for assault, battery and false imprisonment, arising out of and incidental to his reception and detention in the Psychiatric Hospital between the 19th and 24th September 1980. In order to obtain such leave the Respondent must, in accordance with the provisions of the Section, satisfy the Court that there are substantial grounds for contending that the Appellants through their officers, Dr. O'Donnell and Dr. Geraghty acted in bad faith or without reasonable care. It seems to me that it is necessary in the first instance to consider the meaning to be attached to the words "substantial grounds". Obviously, they indicate that the grounds relied on must be real and not imaginary, and must be supported by credible evidence. Also it seems to me that these grounds must be such as toindicate either bad faith or want of reasonable care, and, accordingly, to call for an answer or explanation on the part of the person sought to be sued. This leads me to...

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