THE HIGH COURT
		1995 Record No. 40 I.A.

IN THE MATTER OF AN INTENDED ACTION 
IN THE MATTER OF SECTION 260 OF THE MENTAL TREATMENT ACT, 1945
IN THE MATTER OF THE CONSTITUTION
BETWEEN
PATRICK MELLY
		PLAINTIFF
AND
DESMOND MORAN AND THE NORTH WESTERN HEALTH BOARD
		DEFENDANTS

JUDGMENT of Mrs. Justice McGuinness delivered the 19th day of June, 1997

	This matter comes before the Court by way of Motion on Notice to the Defendants for an Order under Section 260 of the Mental Treatment Act, 1945 (the Act of 1945) which section, so far as material, provides as follows:-

	"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 subsection (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."

THE PROCEEDINGS
	On the 15th December, 1994 the Plaintiff, who was at that time an unrepresented personal litigant, issued a Plenary Summons seeking damages against the First and Second named Defendants and against the Minister for Justice arising out of what the Plaintiff alleged was wrongful detention at St. Columba's Psychiatric Hospital, Sligo between 12th April, 1994 and 19th June, 1994.  It is accepted that on account of his lack of legal advice the Plaintiff was unaware that before issuing such proceedings it was necessary to seek the leave of the Court pursuant to Section 260 of the Mental Treatment Act, 1945.  Appearances were entered on behalf of all three Defendants and during the period May to November 1995 the three Defendants each issued a motion seeking the dismissal of the Plaintiff's proceedings on the ground that no leave had been sought pursuant to Section 260.  These three Motions were before the Court on the date of hearing before me.  
	The Plaintiff sought legal aid from the Legal Aid Board through the Board's Law Centre at Sligo but by letters dated 22nd November, 1994 and 12th December, 1994, which were exhibited in the proceedings, such legal aid was refused.
	The Plaintiff then acquired the services of Messrs. Ferrys, Solicitors and Notice of Appointment of Messrs. Ferrys dated the 22nd November, 1995 was served on all the Defendants.  The Plaintiff's proceedings were then reconstituted in proper form, with the issue of a Notice of Motion seeking leave under Section 260 and exhibiting a draft statement of Claim.  
	At the hearing before me it was agreed by all parties that I should make an Order striking out the Plaintiff's original proceedings and that the Plaintiff should be permitted to proceed with the Notice of Motion seeking leave to issue his new proceedings.  Since it is clear that the Minister for Justice was not a proper Defendant in the original proceedings, the Minister is not named as a Defendant in the Plaintiff's present proposed proceedings.
	In the draft Statement of Claim exhibited by the Plaintiff he claims that his detention in St. Columba's Hospital, Sligo in 1994 was unlawful and violated his personal rights as protected under statute, the constitution and in common law.  This claim is fully particularised in the Statement of Claim.  At this preliminary stage it is unnecessary to detail these particulars.  Counsel for the Plaintiff, Mr. Hogan, however in opening the case to the Court stressed the importance of the Plaintiff's claim,  inter alia , that the provisions of Section 260 of the Mental Treatment Act, 1945 are unconstitutional.  The nub of this claim is set out at paragraph 11 of the draft Statement of Claim as follows:-

	"Without prejudice to the foregoing, in so far as the provisions of Section 260 of the Mental Treatment Act, 1945 confine the power of the High Court to grant leave to institute proceedings where it is shown that the Defendants have acted in bad faith or without reasonable care and in so far as the proceedings do not disclose lack of reasonable care on the part of the Defendants herein (which is denied) in this case, the said provisions of the said Section are unconstitutional."

	On account of the challenge to the constitutionality of Section 260 and other claims in regard to the Constitution contained in the Statement of Claim the Attorney General was put on notice of the Plaintiff's proposed proceedings and was represented at the hearing before me.  
	While Counsel for the Plaintiff in his opening submissions referred in some detail to the proposed challenge to the constitutionality of Section 260, he proposed that the first step to be taken by the Court was to decide within the parameters of the present law whether leave should be granted to the Plaintiff to issue his proceedings.  This preliminary issue would fall to be decided within the terms of Section 260 and, depending upon the outcome, the Plaintiff could, if necessary, pursue the constitutional issues at a later stage.  Counsel for both Defendants and the Attorney General agreed that this was the proper course to follow.  Accordingly, the sole issue before the Court at present is whether it is proper to permit the Plaintiff to institute his proposed proceedings.  The institution of the proposed proceedings is opposed by the first and second named Defendants.  Counsel for the Attorney General, Mr. Frank Clarke, reserved his position, his role being to deal with the merits of the Plaintiff's claims in regard to the constitutionality of Section 260 and other aspects of the Mental Treatment Act, 1945.  

THE FACTS
	The Plaintiff, Patrick Melly, in his affidavit sworn the 16th day of November, 1995 states that since 1972 he has been hospitalised voluntarily on a number of occasions for irrational behaviour and personality problems.  Between 1972 and 1976 he was hospitalised five times at St. Columba's Hospital, Sligo.  He states that his only previous involuntary admission was in May 1972.  In or about 1986 he received in-patient treatment for three weeks in Fairmile Mental Hospital, Berkshire, England.  
	The First named Defendant in his replying affidavit sworn the 17th February, 1997 states that the Plaintiff had been a patient of his since 1975 and that he was familiar with his history of chronic schizophrenia.  Dr. Seamus Geraghty, the Resident Medical Superintendent at St. Columba's Hospital, Sligo swore an Affidavit on behalf of the Second named Defendant on the 5th March, 1997.  He deposes to having known of, treated and become familiar with the Plaintiff's condition since in or about 1976.  At that time the Plaintiff, according to Dr. Geraghty, was suffering from a paranoid illness and was diagnosed as a chronic schizophrenic.
	It appears, therefore, that the Plaintiff was known to and treated by both 
Dr. Moran as a general practitioner and Dr. Geraghty in St. Columba's Hospital since in or about the mid-1970's.  While, as is to be expected, the affidavits do not deal in any detail with the course of the Plaintiff's illness over the years, it seems that with the use of suitable prescribed medication he has been able to live a reasonably normal life in the community over the years but that from time to time his symptoms are exacerbated.  Whether this results from failure to take his prescribed medication or from other causes is not entirely clear.  His regular maintenance on medication has apparently been carried out by Dr. Moran, while 
Dr. Geraghty has treated him both in St. Columba's Hospital and at out-patient clinics.
	The events which are at issue between the parties occurred in April 1994.  According to the Plaintiff he attended the surgery of Dr. Moran on the 8th April, 1994 for a prescription for constipation.  His account of the visit is that it was brief and there was absolutely no discussion of his mental condition.  Dr. Moran's account of the visit is very different.  He states (at paragraph seven of his affidavit):-

	"I told him that his family were worried about his health and I requested that he admit himself as a voluntary patient to St. Columba's Hospital.  Mr. Melly was in an agitated state at that visit and talked in a deluded fashion.  He behaved in an aggressive fashion towards me.  I formed the clinical opinion following my assessment of him that he was deluded and mentally disturbed and would require a prolonged period of psychiatric treatment and care for his own sake and also for the sake of his family and the general public.  The Applicant refused my request."

	The Plaintiff in his affidavit goes on to describe how on Sunday 10th April at about 7.00 a.m. after a restless night he telephoned Dr. Moran "as I wanted to show him some calculations that I had made that concerned me.".  Dr. Moran suggested that the Plaintiff should come to his residence to see him at about 9.30 to 10.00 a.m.  The Plaintiff says that when he called at the appointed time there was no answer to the doorbell.  About an hour later he telephoned the doctor who expressed annoyance and did not want to talk to him.  
Dr. Moran agrees that the Plaintiff telephoned him early on the morning of Sunday the 
10th April and spoke of showing him calculations which concerned the Book of Revelations and the birthday of Mr. Raymond McSharry, the former European Commissioner and local public representative.  The Plaintiff was agitated.  Dr. Moran agrees that he asked the Plaintiff to call to his house later but says that although he was at home he did not hear the Plaintiff arrive.  Again he accepts that the Plaintiff telephoned him later that morning.  Dr. Moran says that the Plaintiff was aggressive on the telephone, that he felt that the Plaintiff was very disturbed and again asked him to enter hospital as a voluntary patient.  The Plaintiff refused.  Dr. Moran avers that he was particularly concerned because he knew that the Plaintiff was driving a car and feared that he might injure himself or another person.  He felt that the Plaintiff was more deluded than on Friday 8th April and that he was seriously mentally ill.  
	It appears to be common case that the Plaintiff went to his family home (where he resided) at lunch time on 10th April.  He admits to having had a row with his sister but denies his sister's allegation that he hit her.  He says that "he pushed her around a little and she bumped her nose off a door.".
	Later on Sunday 10th April the First named Defendant by arrangement met with Dr. Geraghty of St. Columba's Hospital to discuss the Plaintiff's mental state.  
Dr. Geraghty gave him some information with regard to contact that the Plaintiff had had with Dr. Jane Dorman, a local general practitioner.  In an affidavit sworn on 17th February, 1997 Dr. Dorman describes telephone calls from the Plaintiff at 11.00 p.m. on Saturday 
9th April, 1994 and on the morning of Sunday 10th April, 1994 when, having asked could he become a patient of hers, he asked her for her vital statistics, her age and her marital status.  He subsequently called to her house on the afternoon of the 10th April but she asked him to leave and then contacted Dr. Geraghty.  The Plaintiff acknowledges that he telephoned 
Dr. Dorman, although he says that it was twice on the night of Saturday 9th April, and that he spoke to her inappropriately and perhaps rudely.  He also agrees that he called to her home on the afternoon of Sunday 10th April. 
 	On Monday 11th April the Plaintiff drove to Enniskillen.  While in that area he was stopped by the RUC, brought to the RUC station at Enniskillen, and charged with reckless driving.  While at the RUC station he was examined by a Dr. Cathcart, Forensic Medical Officer, for the purpose of assessing whether he was fit to be held in custody in the RUC station.  In a report in the form of a letter dated 13th April, 1995 Dr. Cathcart says that at the time of the interview he found the Plaintiff to be alert and co-operative.  He found that the Plaintiff was coherent, making sense and oriented in time, place and person and that at the time of examination he felt him to be in a satisfactory mental state to give consent for examination.  However, he was unable to make any generalisations about the mental state of health of the Plaintiff prior to or after the examination.  
	Meanwhile on the morning of 11th April, 1994 the Plaintiff's family contacted Dr. Moran and complained of his mental state and behaviour, including the fact that he had struck his sister.  They expressed fears of the possibility that the Plaintiff might set fire to the family home and about his being in charge of a motor vehicle.  The family had previously telephoned Dr. Moran about the Plaintiff's psychiatric condition.  
	On the morning of the 11th April, according to Dr. Moran's affidavit, the Plaintiff's mother telephoned him and asked that the Plaintiff be put into St. Columba's Hospital.  Later that day the doctor arranged for Mrs. Eileen Melly, the mother, to sign the statutory form applying to have the Plaintiff admitted into St. Columba's Hospital.  The Plaintiff claims that his mother informed him that she did not understand this form.  He refers (at paragraph 13 of his affidavit) to "a sworn statement made by my mother dated the 
19th April, 1995 when produced" but no such statement was included in the documents handed into Court, nor was it referred to by Counsel for the Plaintiff.  The Plaintiff states that his mother only signed the form after his brother Vincent refused to do so.  This is borne out in an affidavit sworn by the Plaintiff's brother, Mr. Vincent Melly, who avers that he was shown the form by the First named Defendant on the afternoon of 11th April but that after the doctor had explained the form to him he refused to sign it.  He then states (at paragraph 5 of his affidavit):-

	 "I understand that my brother Pat had gone to Enniskillen that day.  My brother rang my mother from Enniskillen and said that he was being detained by the RUC for dangerous driving.  He was looking for money for bail.  I had no money there and then.  I told my mother and she was very concerned.  I think my mother then signed the form and asked me to bring it to the Garda barracks as she was worried about the safety of his driving and his medication.  I brought the form to the barracks"

	Mr. Vincent Melly, however, says that none of his family wanted the Plaintiff to be hospitalised.  Dr. Moran in his affidavit states that he explained the seriousness of the Application for Committal form to Mrs. Eileen Melly on a number of occasions and that she fully understood it.  He also explained the form to the Plaintiff's brother and sister.
	Bail having been arranged, the Plaintiff was released from Enniskillen RUC Station at approximately 11.30 p.m. on the night of 11th April, 1994.  On the outskirts of Sligo at about 12.40 a.m. he was stopped by Garda Sergeant Kieran O'Brien and Garda John McHale and brought to St. Columba's Hospital where they arrived at about 1.30 a.m. on 
12th April, 1994.  The Gardaí had the statutory form which they presented to Dr. Peter Talbot, the Duty Doctor at the Hospital, who examined the Plaintiff and signed the Order for reception which is dated 12th April, 1994.  The Plaintiff remained as an in-patient in the hospital, although allowed out on temporary visits from time to time, until 19th June, 1994, when he was discharged. 

THE STATUTORY FORM
	In reference to Section 260 of the Act of 1945, Counsel for the Plaintiff accepted that there was no allegation that either the first or the second named Defendant had acted "in bad faith".  He asserted, however, that both had acted "without reasonable care".  In making this claim he relied in large part on defects in the statutory form of Application, Recommendation and Order for Reception and Detention under which the Plaintiff was committed to St. Columba's Hospital.  It is, therefore, necessary to refer in some detail to this form and also to the relevant sections of the Act of 1945.  The form is prescribed by the Mental Treatment Regulations S.I. No. 261 of 1961.  
	Section 163 of the Act of 1945, as amended by Section 7 of the Mental Treatment Act, 1961, where relevant to the instant case provides as follows:-

	"163(1) 	Where Application is made for a Recommendation for Reception 
		(a) 	in case the registered medical practitioner to whom the Application is made has visited and examined the person to whom the Application relates within twenty four hours before receipt of the Application, either - 
		(i) 	if he is satisfied that it is proper to make the recommendation 
			and is of opinion that the person to whom the Application re
			lates will, if received, be a chargeable patient, he shall make the 
			recommendation in the prescribed form, or 
	(ii)	in any other case, he shall refuse the Application.
	(b) .......
	(ii)	the following provision shall have effect in relation to a Recom
		mendation for Reception:-
			(a)	the recommendation shall state the date of examination by the registered medical practitioner of the person to whom the recommendation relates and shall be signed either, in case the examination was made before the date of receipt of the application for the recommendation, on the date of such receipt, or, in any other case, on the date of such examination;
			(b)	the Recommendation shall contain a certificate that such person is of unsound mind, is a proper person to be taken charge of and detained under care and treatment, and is unlikely to recover within six months from the date of such examination;
			(c)	the Recommendation shall contain a statement of the facts upon which the registered medical practitioner has formed his opinion that such person is a person of unsound mind, distinguishing facts observed by himself and facts communicated by others.".

	Section 169 provides for the escorting of the person to the mental hospital where this is necessary as follows:-

	"169	Where a registered medical practitioner making a recommendation for reception certifies that the case is one in which an escort is required to ensure the safe conveyance of the person to whom the recommendation relates - 
		(a)	the person to whom the certificate is issued may present it to the member of the Garda Siochana in charge of any Garda Siochana station, 
		(b)	thereupon that member shall -
			(i)	request the Resident Medical Superintendent of the District Mental Hospital mentioned in the Recommendation to arrange for an escort, or 
			(ii)	himself arrange for such an escort as, in his opinion, is necessary ....".

	Section 171 deals with the reception of the person at the mental hospital and the making of the actual Reception Order as follows:-

	"171(1)	Where a person is removed to a District Mental Hospital in pursuance of a recommendation for reception, the Resident Medical Superintendent of the hospital or another medical officer of the hospital acting on his behalf shall, on the arrival of the person at the hospital and on presentation of the recommendation, examine the person, and shall thereupon either -
		(a)	if he is satisfied that the person is a person of unsound mind and is a proper person to be taken charge of and detained under care and treatment, forthwith make in the prescribed form an Order (in this Act referred to as a chargeable patient Reception Order) for the reception and detention of the person as a person of unsound mind in the hospital, or 
		(b)	in any other case refuse to make such Order
    	(2) 	Where a chargeable  Patient Reception Order is made, the Applicant for the recommendation for reception in consequence of which the Order was made, shall, for the purposes of this Act be regarded as the Applicant for the Order ....."

	The "prescribed form" provided under the Mental Treatment Regulation of  1961 is headed Mental Treatment Act, 1945; person of unsound mind (chargeable); application, recommendation and order for reception and detention of a person as a person of unsound mind and as a chargeable patient.  The form is divided into four parts.
	Part 1 sets out the particulars of the person who is alleged to be of unsound mind (name, address, age, sex, marital status, religion, occupation) and the name and address of the person to whom notice in respect of the person is to be sent - in the present case Dr. S. Geraghty of St. Columba's Hospital, Sligo.  Question 7 in Part 1 asks: 

	"if any previous application was refused, state:-
	(a)	Name of doctor who refused the application.
	(b)	Date of refusal."

This is filled in Dr. Moran's handwriting as "? No," although in his later affidavit Dr. Moran avers that on a previous occasion he had in fact refused to make a recommendation for committal despite being asked to do so by Mrs Melly.
	Part 2 is the actual application by the person's husband, wife, relative or other appropriate person.  The application is addressed to Dr. Geraghty and signed by the Plaintiff's mother, Eileen Melly.  Section 9 of Part 2 states:- 

	"the said person:-
	(a) 	Is not, in my opinion, capable of deciding whether to enter hospital 
		voluntarily;
	(b) 	is not willing to enter hospital voluntarily"

and the person filling in the form is directed to delete which does not apply.  In this case neither alternative is in fact deleted.  In his affidavit Dr. Moran as already noted states that on two occasions he asked the patient to enter hospital voluntarily and the patient refused.
	Part 3 is headed Recommendation for Reception in pursuance of Section 163 of the Act:  (to be completed by a registered medical practitioner).  This section of the form has been filled in by Dr. Moran.  He states under the heading Facts Observed by Myself "Deluded ++, Aggressive behaviour in the home, has struck his sister.  Goes around the home laughing very early in the morning".  Under Facts Communicated By Others he states "Mainly odd behaviour in the home - laughing and shouting".  On the form Dr. Moran has filled in that he examined the Plaintiff on the 8th April, 1994.  Part 3 of the form is signed by Dr. Moran and his signature is dated 11th April, 1994.  
	Part 4 which is headed Order for Reception and Detention in pursuance of Section 171 of the Act states at paragraph 13 "I have examined the recommendation for the reception of the said person and I have today examined the said person.  I am satisfied that he/she is a person of unsound mind and is a proper person to be taken charge of and detained under care and treatment".  At paragraph 14 it states "I hereby order that the said person be received and detained in the mental hospital named in Part 2 of this form as a person of unsound mind.".  This section of the form is signed by Dr. Peter Talbot and is dated 
12th April, 1994.  It is clear from the affidavit of Dr. Seamus Geraghty that Dr. Talbot was properly authorised to act and that he examined the Plaintiff when the Plaintiff arrived at
St. Columba's Hospital.
	Counsel for the Plaintiff suggested that the affidavit on behalf of the Second named Defendant should have been sworn by Dr. Talbot as the actual receiving doctor rather than by Dr. Geraghty.  I do not accept this suggestion; Dr. Geraghty was the resident medical superintendent and he had considerably more knowledge as to the medical history and background of the Plaintiff.
	The main issue which arose in regard to the prescribed form was that, whereas Section 163 provides that the registered medical practitioner should have visited and examined the person concerned within twenty-four hours before receipt of the application, Dr. Moran stated on the form that he had examined the Plaintiff on the 8th April 1994, where as the application itself is dated 11th April, 1994 and was in fact made on that day.  Counsel for the Plaintiff submits that this failure to abide by the provisions of Section 163 shows want of reasonable care on the part of the First named Defendant.  He also submits that Dr. Talbot on behalf of the Second named Defendant should have noted this discrepancy in the form and should therefore not have made the Order for reception and detention under Part 4.  This, he argues, shows want of reasonable care on the part of the Second named Defendant.

THE INTERPRETATION OF SECTION 260
	Both this Court and the Supreme Court have considered the interpretation of Section 260 of the Act of 1945 in a number of cases.  In O'Dowd -v- North Western Health Board [1983] I.L.R.M. 186 the Plaintiff was given leave to issue proceedings by Costello J. (as he then was) in the High Court but this decision was overturned on appeal by the Supreme Court.  The full facts are set out in the judgment.  The Application under Section 162 was made by the Plaintiff's wife; the Plaintiff was discharged from hospital after five days.  In his judgment (at page 190 of the Report) O'Higgins C.J. refers to the operation of Section 260:-
	"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 to indicate 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 conclude that the Section requires the Applicant for leave to sue to establish something approaching a prima facie case before he can obtain such leave.  He is not to be permitted to mount a vexatious or frivolous action or one based on imagined complaints.  I think the Section does no more than to require for leave to sue to discharge the same onus of proof as he would be required to discharge in pursuing a claim for damages for a tort outside the Act but to discharge it an earlier point in time.  In suing in respect of such a tort he would have to discharge the same onus in order to succeed in his claim.  This Section merely requires him to do so before he can start the action.  As the action deals with the mentally ill or those thought to be so it does not seem to me that this limitation is unduly restrictive or unreasonable."

	In his judgment the learned Griffin J. stated (at page 194):-

	"Section 260(1) provides that no civil proceedings shall be instituted in respect of an Act purporting to have been done in pursuance of that 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 the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.  Counsel for the Plaintiff accepts that no question of bad faith arises in this case.  Under Section 260 before leave of the Court can be given the Court must be satisfied that there are substantial grounds for  contending that Dr. O'Donnell and/or Dr. Geraghty acted without reasonable care.  The first thing to observe is that the Section puts the onus of proof fairly and squarely on the person seeking to bring the action".

	The learned judge went on to refer to Richardson -v- London County Council [1957] 1 W.L.R. 751 in which the same  words which are used in Section 16 of the English Mental Treatment Act, 1930 were considered by Denning L.J. and he quoted with approval a portion of Lord Denning's judgment as follows:-

	"Parliament has wisely provided that (the intended Plaintiff) is not to be allowed to bring an action of this kind unless there is substantial ground for believing (the public authority) to have been guilty of want of good faith or want of reasonable care.... (the Act of 1930) puts the burden of proof on the man who seeks to bring such an action.  It goes further.  It says that not only must there be reasonable grounds but there must be substantial grounds for the contention.  I do not think it is possible to define what are "substantial grounds".  Suffice it to say that there must be solid grounds for thinking that there was want of reasonable care or bad faith."

	Griffin J. went on to quote from Parker L.J. in the same case as follows:-

	"The word 'substantial' is not easy to define.  Indeed, it is probably incapable of precise definition; but I take it that it means something more that 'reasonable ground' , which were the words used in Section 330 of the Lunacy Act, 1890 before it was amended by Section 16 of the Act of 1930.  It is, I think, at the opposite end of the scale (if I may use that expression) to a flimsy ground.  It is something short of certainty, but something considerably more than bare suspicion."

	In the O'Dowd case both O'Higgins C.J. and Griffin J. held that no substantial grounds had been shown for bringing the intended action and allowed the appeal.  In a minority judgment Henchy J. compared the prescribed form under Section 163 and in particular Part 4 thereof  to a warrant for arrest which was the authority for depriving the patient of his liberty and held that the matter set out in the form had to be strictly accurate.  In relation to the interpretation of the wording of this Section, however, the learned Henchy J. was generally in agreement with the majority judgments.  He stated (at page 198 of the report):-

	"I subscribe to the opinion that the adjective 'substantial' should be given such a connotation of weight or solidity.  But when the substantial ground required to be shown refers to want of reasonable care on the part of a doctor in the matter of diagnosis or treatment the onus of proof to be discharged by the Applicant is indeed a heavy one.  A doctor, particularly a psychiatrist or a doctor examining a person suspected of suffering from a mental illness, is not necessarily wanting in reasonable care if he makes a wrong diagnosis.  The human psyche is so complex and concealed, human conduct so susceptible of different interpretations, clinical tests so apt to mislead, and the aetiology of certain types of mental illness so lacking in precision, that a psychiatrist or a doctor plying his psychiatric skills may be driven, in the absence of an opportunity of long term and close observation, to act in to some extent on second hand information, particularly information supplied by someone who lives with, or who has been in close contact with, the patient.  This is particularly so when the doctor's services are called upon to determine the course of action based on a complaint of dangerously irrational behaviour.  If he supplements his personal observation and clinical examination with apparently reliable information vouchsafed by persons who have had due opportunity to observe the patient's conduct and who do not seem to have an axe to grind, and if on the basis of that combination of insights he makes what transpires to be a wrong diagnosis or an unnecessary mode of treatment, he is not necessarily negligent.  He is negligent in a case such as this only when his diagnosis or his certification is one which a reasonably careful and skilful doctor would not have made in the circumstances, particularly having regard to the limits of his statutory powers.".

	The interpretation of Section 260 again arose for consideration by the Supreme Court in the case of Murphy -v- Greene [1990] 2 I.R. 566.  In that case McKenzie J. in the High Court had granted liberty to the Plaintiff to issue proceedings but again the Supreme Court overturned this decision on appeal.  In that case the application was made by the Plaintiff's wife in the situation where there were clearly matrimonial difficulties.  When the Defendant Doctor. saw the Plaintiff, the Plaintiff was drunk and had assaulted his wife and daughter.  In the event the Plaintiff was detained in the mental hospital for less than a day.  In his judgment Finlay C.J. referred to the judgments of O'Higgins C.J. and Griffin J. in the O'Dowd case.  He went on to say (at page 572-3 of the report):-

	"Section 260 of the Mental Treatment Act, 1945 is prima facie a curtailment of the constitutional right of every individual of access to the courts to the extent that it requires a pre-condition of leave of the court for the bringing by him of a claim for damages for an asserted wrong.  It seems reasonable, as was stated by O'Higgins C.J. in O'Dowd -v- North Western Health Board [1983] I.L.R.M. 186 that one of the reasons for this curtailment is to prevent a person who is or has been thought to be mentally ill from mounting a vexatious or frivolous action, or one based on imagined complaints...  Section 260 subsection 2 which provides that an application under the section must be served on the proposed Defendant who shall be entitled to be heard against it would appear to be inconsistent with the interpretation of the section which simply or only required of a Plaintiff to establish a prima facie case or one calling for a reply or answer from the Defendant.  A prima facie standard would appear to be more consistent with the situation where a court is asked to adjudicate upon the state of the case at the conclusion of evidence adduced on behalf of the Plaintiff and before a Defendant has been given an opportunity to refute that evidence.  In order to comply with Section 260 an intending Plaintiff must establish facts to the satisfaction of the Court.  I am not satisfied that in order to do so he must prove these facts beyond a probability.".

	While in the O'Dowd case Griffin J. had felt that the burden of proof on the Plaintiff went somewhat beyond the balance of probability in Murphy -v- Greene he acknowledged the correctness of Finlay C.J.'s view that the burden was in fact the balance of probability.  
	The next case in which Section 260 was considered is O'Reilly -v- Moroney [1992] 2 I.R. 145.  In this case Murphy J. in the High Court, having heard both affidavit and oral evidence, refused leave to institute proceedings.  His decision was upheld by a majority in the Supreme Court (unreported 16th November, 1993).  The facts were that the application for committal of the Plaintiff was made by her husband, again in circumstances of matrimonial difficulties.  The Defendant doctor, who was her husband's general practitioner but not hers, was given information as to her mental state by her husband and her father.  He then observed from a distance of some twelve to fifteen yards when her husband went to the door of the family home.  The wife opened the door and had a violent altercation with her husband.  The doctor subsequently signed the prescribed form stating that he had examined the Plaintiff.  When the Gardaí arrived to bring her to the mental hospital they found her behaviour to be perfectly normal in the circumstances.  In the event she was detained for three days in the mental hospital for assessment and then discharged.  
	It was argued both in the High Court and in the Supreme Court that the Defendant doctor had not "examined" the Plaintiff in any real sense.  Murphy J. in the High Court "not without some hesitation" accepted that it was an adequate examination for the purposes of the certificate.  In the Supreme Court Egan J. dealt with the question of the adequacy of the examination at page 9 of his judgment as follows:-

	"There is no definition of the word 'examine' in the section and the fact that Dr. Moroney himself agreed that there was no physical examination or interview does not conclude the matter.  Here was a case where the doctor had evidence which he considered to be reliable to the effect that the Plaintiff had threatened suicide and needed treatment so urgently that it might be unsafe to leave it until the following day.  This was followed by what he actually saw outside the Plaintiff's house when she was shouting and screaming and kicking out at her husband.  This observation, having regard to what he had been told, constituted a form of  'examination' in my opinion and justifies the doctor in pursuing the course which he did.".

	The learned judge then went on to quote a passage from the judgment of McCarthy J. in the case of Murphy -v- Greene as follows:-

	"When a medical practitioner is called on 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 having 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.".
	In a brief judgment O'Flaherty J. expressly agreed with Egan J.'s approach to the question of the examination.  Both judges held that there were not substantial grounds for contending that the doctor acted without reasonable care.  
	In a lengthy minority judgment Blayney J. held that on the facts the doctor did not "examine" the Plaintiff and that there was a clear prima facie case that he acted without reasonable care.  
	The final case to which I was referred by Counsel is Bailey -v- Gallagher [1996] 2 I.L.R.M. 433.  In this case there were again circumstances of matrimonial difficulties.  The Defendant doctor signed a certificate for the purposes of Section 184 of the Mental Treatment Act, 1945 on the 18th May, 1988, based on an examination carried out on the 12th May, 1988 - within the seven day time span allowed by Section 184.  However, the certificate was not acted upon until 21st May, 1988, when the Plaintiff was taken from his home to the Garda Station and there detained.  With the assistance of his solicitor he was released after two hours.  Two days later the Plaintiff was seen by a psychiatrist who found no psychiatric disorder and no grounds for committal.  In the High Court the Plaintiff was refused leave to issue proceedings.  In the Supreme Court the Plaintiff's appeal was allowed.  Keane J. gave the main judgment of the Court.  It was held that, as set out in the headnote, there was no evidence that would support a finding of bad faith or want of reasonable care on the part of the Defendant in his signing of the certificate on 18th May, 1988.   On the contrary, the Defendant had approached the matter with a considerable degree of care and his actions in taking a thyroid test and in referring the Plaintiff to a psychiatrist were those of conscientious and responsible practitioner.  On the other hand it was also held that no valid reception and detention order could have been made under the Mental Treatment Act, 1945 in respect of the Plaintiff had he in fact been brought to a psychiatric hospital and such an application made on 21st May, 1988.  The medical examination which formed the basis of the certificate necessary for the making of the Order had taken place on 12th May, 1988 and as such the certificate was in fact spent or expired by 21st May, 1988.  The Court held that there was therefore no lawful justification under the Mental Treatment Act, 1945 for the removal of the Plaintiff to the Garda Station.  The committal was taking place against a background of marital discord which indicated the need for even greater caution than the ordinary care which the law expects in every case of doctors exercising their far reaching powers under the 1945 Act.  It was at least arguable that the Defendant was bound to ascertain whether the certificate upon which the detention was based was still in force.  The Court then held that there were substantial grounds for contending that the Plaintiff's imprisonment on the morning of 21st May, 1988 was wrongful and was due in part to a want of reasonable care on the part of the Defendant.  
	In this case the Supreme Court appears to have taken a much more strict line on the interpretation of Section 260 and in particular on the construction of the statutory form than in the previous cases.  Nevertheless it was held that there was no want of reasonable care in the original signing of the certificate.  
	In the light of these cases the Court must consider, primarily, whether there are (on the balance of probabilities) substantial grounds for contending that the First named Defendant and/or the Second named Defendant acted without reasonable care.  There is no suggestion that they acted in bad faith.  Mr. Hogan on behalf of the Plaintiff submits that the fact that Dr. Moran's actual examination of the Plaintiff took place on the 8th April, 1994 and not within twenty four hours of the signing of the prescribed form on 11th April, 1994 was in itself want of reasonable care by the first named Defendant and that the making of a Reception Order by Dr. Talbot on behalf of the Second named Defendant, when he knew or should have known that the form was defective, was also want of reasonable care.  
	Mr. McEntee, Senior Counsel, for the First named Defendant, submits that a psychiatric examination is not comparable to a physical medical examination.  In his submission a psychiatric examination could include, as well as meeting and speaking with the patient, the gathering of collateral information from relatives and other sources and telephone contact with the patient.  He contends that Dr. Moran's "examination" of the Plaintiff in fact continued over the three days from the 8th to the 10th of April.  At first sight this might seem a somewhat strained interpretation of the word "examination" but when one compares it with the acceptance by the High Court and a majority of the Supreme Court of the type of examination carried out in the O'Reilly -v- Moroney case it is very clear that Dr. Moran's proceedings were far more meticulous.  If information from relatives about an unknown patient followed by brief observation from fifteen yards away can be accepted as an examination then it is hard to see that a face to face interview of a patient whom the doctor had known and treated for over twenty years followed by the gathering of information from relatives and from the psychiatrist who had also treated the Plaintiff for twenty years, and  followed by telephone contact, does not constitute an examination.  
	However, it does not appear to me that my primary task is to decide on the proper definition of an examination of the Plaintiff.  What I am required by Section 260 to do is to decide whether there are substantial grounds for contending that either the First named Defendant or the Second named Defendant acted without reasonable care.  It is clear from the preponderance of the judgments of the Supreme Court that Section 260 is designed to prevent vexatious or ill-`founded actions against medical practitioners in the circumstances of mental illness.  It might well be suggested - as Mr. Hogan did in opening the case - that Section 260 sets too high a barrier for the potential litigant.  It is interesting to note in this context that both the O'Dowd case and the O'Reilly case were taken to the European Court of Human Rights.  In the O'Dowd case the Commission declared the application inadmissible on the grounds that the Applicant had not exhausted the domestic remedies by directly challenging the constitutionality of Section 260.  In the O'Reilly case the application was accepted as admissible by the Commission but was subsequently settled.  This Court at this point, however, is dealing solely with the law under Section 260 as it stands at present.
	It seems to me important that there is a wide difference between the facts of this case and those of the other cases to which I have been referred.  In all of those cases the Plaintiffs had no previous record of psychiatric illness, the committal to the mental hospital took place against a background of matrimonial dispute and was sought by the spouse, and in the event the Plaintiff was detained for a minimal period in the mental hospital and no actual diagnosis of mental illness was made.  
	In the instant case the Plaintiff himself acknowledges that he has suffered from a personality disorder for the past twenty five years.  He was well known as a patient to both Dr. Moran and Dr. Geraghty, both of whom had treated him over a period of twenty years.  During the period leading up to the 11th and 12th April, 1994 his conversation and behaviour showed obvious signs of disturbance and the members of his family were clearly deeply concerned about the state of his health.  When he was admitted to St. Columba's Hospital he was treated as an in-patient for over two months and there is no specific or cogent suggestion that this treatment was totally unnecessary.  
	During the period 8th - 11th April Dr. Moran interviewed the Plaintiff and spoke to his family.  He was so concerned that he made direct contact with Dr. Geraghty of St. Columba's Hospital (11th April) and arranged to meet him, whereupon he heard the disturbing information about Dr. Dorman.  His fears about the Plaintiff continuing to drive his car were borne out when he heard that the Plaintiff had been arrested by the RUC in Enniskillen for a driving offence.  It is true that Dr. Cathcart examined the Plaintiff in the RUC Station in Enniskillen and found no particular sign of psychiatric illness, but at the time when he was dealing with the matter Dr. Moran knew nothing of this examination.  It is clear that Dr. Moran was keeping the position of the Plaintiff under review from 8th April until the time he signed the prescribed form on the 11th April. 
	On these facts it does not appear to me that there are substantial grounds for holding that the First named Defendant Dr. Moran acted without reasonable care.
	The Second named Defendant in the person of Dr. Geraghty was also well aware both of the medical history of the Plaintiff and of the concerns of Dr. Moran in the period leading up to the Plaintiff's admission to St. Columba's Hospital on the night of the 11th/12th April.  There is no contention that the Plaintiff was not adequately examined by Dr. Talbot on his submission.  The sole accusation against the Second named Defendant is that Dr. Talbot ought to have adverted to the fact that there was a defect on the face of the form and accordingly refused to make the reception and detention order.  In appraising Dr. Talbot's  conduct I would refer to the dictum of the learned McCarthy J. in regard to the standard of reasonable care under the Act of 1945 in the case of Murphy -v- Greene which I have already quoted above.  In the light of this dictum, which is binding on me, I do not consider that there are substantial grounds for holding that the Second named Defendant acted without reasonable care.  
	For these reasons it seems to me leave to institute proceedings against either party must be refused.