THE Supreme Court has granted permission to a Kerry man to sue a doctor who signed a certificate for his detention in a psychiatric hospital.
Mr James Bailey, a carpenter, of Ardcanaught, Castlemaine, said he understood he had been discussing his marital problems' with Dr Patrick Gallagher, Laune River House, Castleconway, Killorglin. His action against Dr Gallagher will be heard by a circuit court judge.
Giving judgment, Mr Justice Keane said this committal was against a background of marital discord which indicated the need for even greater caution than the scare which the law expected in every case of doctors exercising their far reaching powers under the 1945 Mental Treatment Act.
He said the wife came to Dr Gallagher's surgery in April 1988, following a shoulder injury she alleged had been caused by her husband.
On May 12th, 1988, Dr Gallagher referred the Baileys to a consultant psychiatrist whose report was unequivocally to the effect that Mr Bailey required institutional treatment and should be committed as an involuntary patient.
Mr Justice Keane said he was satisfied there was no evidence of bad faith or want of reasonable care on Dr Gallagher's part in signing the certificate in those circumstances. His actions were those of a conscientious and responsible GP.
Mr Justice Keane said Dr Gallagher claimed the consultant psychiatrist, Dr Brendan Lynch, indicated that Mr Bailey might be psychotic and advised his admittance to a psychiatric hospital.
Dr Gallagher said it was in these circumstances he and Ms Bailey signed a temporary form for Mr Bailey's detention on May 19th but she decided to postpone detention as she thought his mental condition was improving.
Mr Justice Keane said on Saturday May 21st, more than seven days after the examination, Mr Bailey was awoken at 7 a.m. at his home by gardai and told he was being arrested under Dr Gallagher's certificate. His solicitor, Mr Philip O'Sullivan, was telephoned and said he was "shocked and surprised" and protested to Dr Gallagher.
Mr Justice Keane said under the Act the detention should have been within seven days of the examination and the certificate was "spent" when the gardai detained Mr Bailey.
The evidence was that at 7.45 a.m. Dr Gallagher was aware Mr Bailey was detained. Had he ensured Mr Bailey was released forthwith there could be no criticism of his actions.
In the event, it seemed Dr Gallagher did neither. It was clear Dr Gallagher set in train a medical examination and Mr Bailey remained in unlawful detention.
Mr Justice Keane said there were no substantial grounds for contending Dr Gallagher acted in bad faith on May 21st; at most he showed lack of prudence in a difficult situation.
But it was arguable that Dr Gallagher was bound to ascertain whether the certificate was still in force. It might be fairly contended a doctor should be aware, if only in general terms, of the strict requirements that must be met before a citizen can be deprived of liberty under the Act.
Mr Justice Keane said it would seem at least an arguable case that Mr Bailey's continued detention after his solicitor had protested was the result of Dr Gallagher failing to bring the detention to an immediate end, ash he clearly could have done.
The fact that Mr Bailey was detained for two hours was immaterial, although it would be important in assessing damages if the action was allowed.
The courts could not condone the abridgment of an innocent citizen's liberty, however short a period, save where it was authorised by law.
He was satisfied there were substantial grounds for contending that Mr Bailey's imprisonment was wrongful and due in part to a want of reasonable care on Dr Gallagher's part.