Lehany v Loftus and the Western Health Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 20 July 2001
• Neutral Citation: [2001] IEHC 108
• Docket Number: No. 36IA/1999
• Date: 20 July 2001
• Court: High Court

[2001] IEHC 108

THE HIGH COURT

No. 36IA/1999

LEHANY v. LOFTUS & WESTERN HEALTH BOARD

IN THE MATTER OF SECTION 260 OF THE MENTAL TREATMENT ACT1945

BETWEEN

SEAN LEHANY

APPLICANT

AND

DECLAN LOFTUS

FIRST NAMED RESPONDENT

AND

THE WESTERN HEALTH BOARD

SECOND NAMED RESPONDENT

Citations:

MENTAL TREATMENT ACT 1945 S184

MENTAL TREATMENT ACT 1945 S260

MENTAL TREATMENT ACT 1945 S260(1)

MENTAL TREATMENT ACT 1945 S260(2)

MENTAL TREATMENT ACT 1945 S260(3)

BAILEY V GALLAGHER 1996 2 ILRM 433

MENTAL TREATMENT ACT 1945 S184(4)

O'DOWD V NORTH WESTERN HEALTH BOARD 1982 ILRM 186

RICHARDSON V LONDON COUNTY COUNCIL 1957 1 WLR 751

MURPHY V GREENE 1991 ILRM 404

O'REILLY V MORONEY UNREP SUPREME 16.11.1993 1993/14/4246

BLEHEIN V MURPHY UNREP GEOGHEGAN 2.7.1999 1999/3/392

MELLY V MORAN UNREP MCGUINNESS 19.7.1997 1998/26/10309

KIERNAN V HARRIS UNREP O'HIGGINS 12.5.1998 1998/23/8837

STATUTE OF LIMITATIONS 1957 S11(2)(b)

MENTAL TREATMENT ACT 1945 S260(4)

MENTAL TREATMENT ACT 1945 S259

MENTAL TREATMENT ACT 1945 S145

Synopsis

PRACTICE AND PROCEDURE

Mental health

Medicine - Detention - Negligence - Whether to grant leave to applicant to institute proceedings - Whether detention in hospital unlawful and unconstitutional - Onus of proof applicable - Whether substantial grounds for contending that defendants acted in bad faith or without reasonable care - Whether applicant had demonstrated prima facie case - Whether application statute barred - Mental Treatment Act, 1945 section 260 - Statute of Limitations, 1957 section 11(2)(b) (1999/36 1A -O Caoimh J - 20/7/01)

Lehany v Loftus

The applicant sought leave under section 260 of the Mental Treatment Act 1945 to institute proceedings against the respondents challenging his detention in a psychiatric hospital. The applicant alleged that the first named respondent had not acted in good faith in certifying the applicant and was negligent in doing so. Evidence emerged there had been difficulties between the applicant and his brother and it was the applicant’s brother who had made the initial complaint regarding the applicant’s behaviour. The applicant complained that the first named respondent had placed too much emphasis on his brother’s complaint and that proper inquiries ought to have been made into his previous medical history. The applicant had been detained for one night and had then been released. Mr. Justice Ó Caoimh was satisfied that there was a clear conflict of evidence. Substantial grounds for contending that the respondents had acted in bad faith had not been made out. While the first named respondent may have misled somewhat he had acted in good faith. The relevant onus of proof had not been met by the applicant. Furthermore the relevant time for bringing the proceedings had expired and the claim was therefore statute barred.

Mr. Justice Aindrias Ó Caoimh

1 The Applicant seeks the leave of this Court to institute Civil Proceedings as against the Respondents arising out of his detention in the Department of Psychiatry, County Hospital, Roscommon, on the 18th July, 1996 and thereafter.

2 The Applicant has sworn an affidavit in which he deposes that on the 18th July he was at home reading a newspaper when the first named Respondent, a medical doctor who practices in Drumshambo, Co. Leitrim, called to his house. The Applicant says that he knew the doctor and admitted him to his house. He offered him a cup of tea. He said that the doctor sat down and told him that he was not there on a courtesy call. He indicated that he had received a telephone message from the Gardai stating that the Applicant was upset and that they wanted a doctor to examine him. He states that the doctor told him that he had himself been informed by the Gardai that the Applicant had threatened his brother Ronan Lehany with physical violence during the course of an argument on the 16th July, 1996.

3 The Applicant states that the doctor, having indicated the nature of his visit, asked him how he was feeling. The Applicant indicated to him that he felt fine and when asked whether he was sleeping properly he replied that he was. The doctor then stated that the Gardai had requested that the Applicant be taken to Roscommon County Hospital for assessment. The Applicant states that he indicated to the doctor at this stage that there was nothing wrong with him and he replied to him that it was the Gardai who had directed this course of action to be taken. He told the doctor that he was unsure as to how he was expected to go to the Psychiatric Hospital and asked if he could go in a private capacity. He has indicated that the reply given to him was, "I don't know. It's up to yourself". It appears that the doctor then left his house. The Applicant says that the entire conversation lasted less than 10 minutes and that there was no physical examination carried out by the doctor and that the exchange of information was to the best of his knowledge the only inquiries that the doctor made about his physical or mental health. He says he was not asked about medication or whether he had been feeling depressed or whether he felt violent or any question touching on those matters. The Applicant states that as the doctor was leaving he said that he would have to go to see the Applicant's brother and his wife to see what they had to say about it. The Applicant says that about an hour later he was working in his hay shed when he heard the noise of a car outside. When he stepped out of the building he saw a Garda squad car had arrived containing three Gardai. He says that one of the members of the Garda Siochana produced a piece of paper and said words to the effect, "Here's a docket signed by a doctor and you have to come with us". He says that he asked the Garda was it for an assessment to which the reply was given, "We don't know". He says that he was allowed go into his house and wash and change his clothes and that he was also permitted to talk to his brother Seamus Lehany with whom he shares his home.

4 The Applicant says that the Gardai showed him the letter which provided for his detention and he accepted that he had no option but to go with them. He was taken by the Gardai to Ballyfamon Garda Station and later transported from the station to the Psychiatric wing of Roscommon County Hospital by a local taxi driver.

5 The Applicant says that when he arrived at the hospital, which is controlled and managed by the Western Health Board, he was seen by a Dr. Kelleghey who brought him to a small reception room where they had a brief discussion. He states that he was asked if he had any history of mental illness. He explained to the doctor that he had suffered from a brief period of depression in or about 1985. That had arisen following an accident at work where he suffered very severe head and leg injuries. He was incapacitated for a period after this accident, the consequence of which he became depressed. He was treated during this time by Dr. Mary McGuire a Consultant Psychiatrist of Boyle, Co. Roscommon and was placed on antidepressant medication for some time. As he became physically rehabilitated his mental condition improved and since 1986 he has not been on antidepressant medication and has not received any medical attention since that time.

6 The Applicant says that he was asked by Dr. Kelleghey about his family history and he indicated to him that there was no history of mental illness in his family. He was told by the doctor that he would be carrying out a number of tests which he believes he passed satisfactorily. These involved reciting the days of the week backwards and repeating an address in Galway to the doctor at various intervals during his conversation. He says that he was very upset at being brought to the Psychiatric Hospital but he co-operated at all times with the authorities. He says that at the end of the consultation Dr. Kelleghey said, "I can see nothing wrong and there is no need for medication". He said that the doctor said that he would not sign an Order for Detention until he had been seen by Dr. Mary McGuire from Boyle. The Applicant says that it subsequently transpired, however, that the doctor did sign a Detention Order as soon as he arrived at the hospital. He was seen on the following morning by a Dr. O'Shea who sent for Dr. McGuire. When Dr. McGuire saw him she said words to the effect that "this is a nice slap in the face for you above of all people". She said that there was no need for him to be detained in a Psychiatric Hospital and she quickly obtained two signatures to secure his release. He left the hospital at approximately 2 p.m. on the 19th July, 1996. The Applicant has exhibited a form under the Mental Treatment Act, providing for the application, certificate and order for reception and detention of a person as a temporary patient and as a chargeable patient in an approved institution in pursuance of Section 184 of the Act. The application form is signed by the Applicant's brother Ronan Lehany and the Certificate of the Registered Medical Practitioner is signed by Dr. Declan Loftus, the first Respondent who certified on the 18th July, 1996 that he was of opinion that the Applicant was suffering from a mental illness, required for his recovery not more than 6 months suitable treatment and was unfit on account of his mental state for treatment as a voluntary patient.

7 The Applicant deposes his belief that Dr. Loftus in giving such a Certificate as a Registered Medical Practitioner was not acting in good faith and the Applicant believes he was negligent in the manner in which he gave that certificate. He does not believe that the Certificate was warranted. His understanding is that Dr. Loftus contacted the Gardai before he visited the Applicant's home and indicated to them that they ought to be prepared to bring a dangerous patient, that is the Applicant, to Roscommon County Hospital. The Applicant complains...