James Bailey (plaintiff) v Patrick Gallagher (defendant).

Practice and Procedure - Application for leave to issue proceedings in respect of doctor's actions under Men tat Treatment Act 1945 - Whether substantial grounds existed for contending defendant acted in bad faith or without reasonable care - Mental Treatment Act 1945 (No 19), sections 184, 165, 169 and 260.

The Supreme Court (Mr Justice O'Flaherty, Mr Justice Keane, Mr Justice Murphy); judgments delivered 23 May 1996.

IT is reasonable to expect doctors to be aware, if only in the most general terms, of the strict legal requirements that must be met before citizens can be deprived of their liberty under the Mental Treatment Act 1945.

The Supreme Court so held in allowing an appeal against an order of the High Court which refused the plaintiff leave to issue proceedings against the defendant in the Circuit Court for negligence and/or false imprisonment and/or defamation.

Michael McMahon SC and Paul McMorrow BL for the plaintiff/appellant, Brian McGovern SC and Mel Christie BL for the defendant/ respondent.

MR JUSTICE KEANE said that as the causes of action relied on by the plaintiff were alleged to have arisen out of the defendant's exercise of his powers, as a medical practitioner, under the Mental Treatment Act 1945, the leave of the court was required under section 260(t) of that Act for the institution of such proceedings.

Mr Just ice Keane then outlined the circumstances giving rise to the application. The plaintiff and his wife had first visited the defendant's surgery on 18 April 1988 when the plaintiff's wife attended with an injury which she alleged had been caused by the plaintiff. The defendant then agreed to see the plaintiff and on forming the initial view that the plaintiff might by "hypomanic" the defendant proposed a thyroid test to rule out any physical cause for what he considered to be the plaintiff's over activity. This test subsequently proved negative and the defendant saw the plaintiff on a number of occasions for prolonged consultations between 18 April 1988 and 21 May 1988.

During this period the defendant claimed that the plaintiff's wife was physically afraid of him and that he himself had witnessed a number of instances of bizarre behaviour on the plaintiff's part. On 12 May 1988 the defendant referred the plaintiff to a consultant psychiatrist remarking in the course of his referral letter that both the plaintiff and his wife were suffering from very great mental stress" arising from "poor marital harmony and interpersonal relations" and also from the plaintiff's financial difficulties.

The consultant psychiatrist gave evidence that after two interviews with the plaintiff he had informed the plaintiff that he was unwell and in need of a rest period in hospital, but that the plaintiff had refused this. The psychiatrist then telephoned the defendant advising that it could be justifiable to take steps towards the compulsory hospitalisation of the plaintiff, in view of his aggression and financial damage which he appeared to be inflicting on himself as a result of his illness. The defendant claimed that under these circumstances he and the plaintiff's wife signed a temporary form for the detention of the plaintiff on 17 May; in addition the defendant claimed that on that day he consulted a second psychiatrist who advised him to proceed with the application.

The defendant then gave the completed certificate to the plaintiff's wife but on 19 May she decided to postpone the detention as she thought the plaintiff's mental condition was improving.

On the morning of the Saturday 21 May, the plaintiff was woken at home by the gardai and removed to the local gardai station were he was informed that he was being arrested under the defendant's certificate. The plaintiff's solicitor was immediately contacted and he in turn telephoned the defendant to ascertain in what context the 1945 Act was being applied to the plaintiff.

There was some controversy as to how subsequent events unfolded. However the plaintiff's solicitor alleged that he had expressed his concern at the detention and indicated that it would interfere with negotiations he was having with the plaintiff's wife's solicitors for a separation agreement on foot of the parties' marital breakdown. The plaintiff's solicitor said that the defendant had responded that he would try to have the plaintiff examined by the psychiatrist on duty at St Finan's hospital. According to the plaintiff's solicitor, the defendant rang back a few minutes later saying that the duty psychiatrist could not examine the plaintiff before the following Monday morning, at which point the plaintiff's solicitor protested that it was unacceptable to detain the plaintiff for the purposes of examination over that period. The plaintiff's solicitor claimed that the defendant then agreed to telephone the gardai and instruct them to release the plaintiff from custody if the plaintiff agreed attend the duty psychiatrist on the Monday. However the plaintiff's solicitor claimed that contrary to this agreement a short time later he was informed by the gardai that the defendant had in fact rung the duty psychiatrist for a second time and set up an appointment for that day. The plaintiff's solicitor said that he then rang the defendant to protest and the defendant agreed to instruct the gardai to release the plaintiff which they immediately did.

The plaintiff was assessed by the duty psychiatrist on 23 May and the latter concluded that the plaintiff was not suffering from a psychiatric disorder nor could he find any grounds for committal. The plaintiff and his wife continued to attend the defendant and on 28 February 1989 the defendant wrote a note to the plaintiffs wife to the effect he didn't think the plaintiff was at any stage "mad" and that there was no such condition as "hypomania".

Mr Justice Keane said that the plaintiff gave evidence that he had attended the defendant for the purpose of obtaining marriage guidance and that he had seen Dr Lynch because the defendant had felt he was not competent enough to deal with the plaintiff's marital problems. The plaintiff also denied he had exhibited the bizarre and aggressive symptoms of which the defendant gave evidence and a number of affidavits were sworn by relatives of the plaintiff in which they stated that they had never seen the plaintiff display any signs of mental instability. Mr Justice Keane said that under section 260 of the 1945 Act leave could not be granted to institute civil proceedings unless the court was satisfied that there were substantial grounds for contending that the person against whom the proceedings were to be brought had acted in bad faith or without reasonable care. The grounds which the plaintiff relied on were thus: (1) the defendant himself had not made any diagnosis of mental illness; (2) Dr Lynch's opinion on which the defendant relied had been tentative in nature; (3) the defendant had not consulted any member of the plaintiff's family, other than his wife before signing the certificate; (4) the defendant had failed to ensure that the plaintiff's wife informed him of his right to a second opinion before he was committed; (5) the defendant had failed to take any action when informed by the plaintiff's wife on 19 May that the plaintiff appeared to be improving; (6) the defendant had failed to tell the gardai to release the plaintiff on 21 May even though he was aware that there were no grounds for the plaintiff's detention.

Mr Justice Keane said that the certificate which the defendant signed on 18 May was the second part of a three part form used in connection with the reception and detention of patients on an involuntary basis under the 1945 Act; it certified that the plaintiff was suffering from mental illness and required not more than six months suitable treatment for his recovery but because of his mental state, was unfit for treatment as a voluntary patient. Mr Justice Keane said that section 184 of the 1945 Act provided that the certificate in question had to be signed by a medical practitioner who had examined the person to whom the certificate related not earlier than seven days before the date of the application. Therefore, Mr Justice Keane said, since the examination on which the certificate was based had taken place on 12 May, no valid reception and detention order could have been made in respect of the plaintiff had he been brought to the hospital on 21 May.

Section 169 of the 1945 Act provided that where a medical practitioner was satisfied that the person concerned required an escort to hospital, the person to whom the certificate was issued could present it to the gardai who should then make the appropriate arrangements. However, Mr Justice Keane said that there was no evidence of any such certificate being presented to the gardai in this case and it appeared that the only legal basis offered for the arrest and detention of the plaintiff was the spent certificate based on the examination of 12 May. With regard to the degree of proof which was required before the court could grant leave to issue proceedings, Mr Justice Keane - said that the plaintiff was only required to satisfy the court on the balance of probabilities that substantial grounds existed. Applying the definition of "substantial" found in Murphy v Greene [1990] 2 IR 566, Mr Justice Keane said that he would equate "substantial grounds" with "potentially credible evidence" which would help the plaintiff establish a case of bad faith or want of reasonable care on the doctor's part.

Mr Justice Keane was satisfied that there was no evidence that would support a finding of bad faith or want of reasonable care on the part of the defendant in signing the certificate. On the contrary, the court felt that he had approached the matter with a considerable degree of care and his actions in taking the thyroid test and sending the defendant to a psychiatrist were those of a conscientious and responsible practitioner. In addition, Mr Justice Keane felt that the duty of informing the plaintiff that he had a right to a second opinion lay with his wife and that no particular action had been called for on the defendant's part when informed on 19 May that the plaintiff appeared to be better.

However, Mr Justice Keane said, the matter assumed a different complexion on 21 May, when the plaintiff remained in unlawful detention although the evidence suggested that he would have been released immediately if the defendant had told the gardai that there was no reason to detain him. While Mr Justice Keane was satisfied that there were no substantial grounds for contending that the defendant had acted in bad faith on 21 May 1988, he felt it was clear that if the defendant had adverted to the fact that there was no lawful ground for the plaintiff's detention, then there were substantial grounds for contending that the defendant had deliberately acquiesced in a violation of the plaintiff's constitutional rights. In addition Mr Justice Keane said, if the defendant had failed to advert to the fact that the medical certificate was spent there were equally substantial grounds for contending that he should have. He felt that it was reasonable for doctors to be aware, if only in the most general terms, of the strict requirements that must be met before citizens could be deprived of their liberty under the 1945 Act.

Mr Justice Keane rejected the argument that because the certificate was spent and no other legal ground had been put forward under the 1945 Act for the plaintiff's detention, the defendant's action in detaining the plaintiff could not be justified by reference to the 1945 Act and accordingly leave did not have to be sought. He was satisfied that the defendant had been at all times acting in purported reliance on his powers under the 1945 Act.

MR JUSTICE O'FLAHERTY, concurring with Mr Justice Keane, said that he had been persuaded that the plaintiff's detention was sufficiently linked with the issue of the certificate to justify granting the appropriate leave to institute proceedings.

MR JUSTICE MURPHY agreed with the judgment delivered by Mr Justice Keane.

Solicitors: Philip O'Sullivan & Co (Tralee) for the plaintiff/ appellant; Arthur Cox (Dublin) for the defendant/ respondent.