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Kiernan v. Harris [1998] IEHC 71 (12th May, 1998)
THE
HIGH COURT
No.
1996 43 IA
IN
THE MATTER OF THE MENTAL TREATMENT ACT 1995 AND IN THE MATTER OF INTENDED
PROCEEDINGS
BETWEEN
WILLIAM
KIERNAN
PLAINTIFF
AND
LIAM
HARRIS, PATRICK KIERNAN AND THE MIDLAND HEALTH BOARD
DEFENDANTS
JUDGMENT
of Mr. Justice O'Higgins delivered the 12th day of May 1998.
"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."
THE
FACTS
1. At
about 11.55 p.m. on the 1st day of September 1995 the Plaintiff was brought in
as a temporary patient form to St. Loman's Hospital, Mullingar, Co. Westmeath.
The form had been signed by the Plaintiff's brother, Patrick Kiernan, the
proposed second named Defendant and also signed by Dr. Liam Harris, the
proposed first named Defendant. The Plaintiff was seen by the Senior House
Officer on duty who examined him and admitted him to the hospital for
observation and assessment. Following examination, Dr. McGeown, consultant
psychiatrist, decided it prudent to detain him for some observation without
medication in view of the fact of the contents of Dr. Harris' certificate, and
the fact that the Gardaí had seen fit to take him to hospital. He duly
signed the temporary patient form on the morning of the 2nd September.
Following a conversation with Eamonn Kiernan, a brother of the Plaintiff, he
discharged the Plaintiff. It is common case that there is ill feeling between
William Kiernan, the proposed Plaintiff and Patrick Kiernan, the proposed
second named Defendant and they are involved in a dispute over land.
In
the case of
Norbert
Murphy -v- Damien Greene
2 I.R. p.566 the Supreme Court held
(a)
that
the Act was a containment of general constitutional right of access to the
Courts and as such should be strictly construed,
(b)
that
the purpose of
Section 260 of
the Act of 1945 was to give limited protection to
persons acting under
the Act from vexatious prosecutions brought against them
by persons likely to be suffering from mental illness,
(c)
that
the substantial grounds for contending that the Defendant had acted without
reasonable care under
Section 260 of
the Act had to be real and not imaginary
grounds and supported by credible evidence, and
(d)
that
the standard of proof required by the Plaintiff to establish these grounds as a
matter of probability did not go beyond the standard of proof for other civil
cases.
2. In
a judgment of Mr. Justice O'Flaherty at page 582 of the report he said
"but even if the plaintiff established that he has a statable case, that is not
enough, he has to satisfy the Court that he has substantial grounds for
contending as a matter of probability that there was bad faith or a lack of
reasonable care. The test is not that he can contend (or assert) that he has
substantial grounds but that the 'substantial grounds' which will help him to
prove his case ultimately do exist in fact. I would equate 'substantial
grounds' with potentially credible evidence which will help him establish his
case of bad faith or the want of reasonable care on the doctor's part".
3. I
propose to deal with the case against each of the proposed Defendants in turn.
1. Liam
Harris.
The Plaintiff deposes that Dr. Harris did not examine him at all on the 1st
September, 1995 and that the doctor's certification to that effect is
incorrect. The Plaintiff says that the last time he attended this doctor was
when he treated him for shingles approximately 15 years ago. Dr. Harris has not
sought to contradict the Affidavit of the Plaintiff. Accordingly prima pacie
there is a strong case that Dr. Harris did not act with reasonable care. In the
circumstances
I will allow the action to proceed against him.
2.
Patrick
Kiernan
.
In respect to Mr. Kiernan two questions arise, first did he act in good faith
and, secondly, did he act with reasonable care.
Section 184 of
the Act makes
provision for temporary committal and sets out the
requirements
for such a committal.
Section 5 of the
Mental Treatment Act,
1953
states as follows:
1. Where
in the case of an application under Section 184 or 185 of the
Act,
a medical certificate under the section had been given, the
following
provision shall have effect
(a)
the applicant or any person authorised by him may, not later than
seven days after the date of the examination, take the person to
whom the application relates and convey him to the institution in
which it is desired to have him received and detained.
Notwithstanding
subsection (1) of this section, where
a
medical certificate has been given under Section 184 of the Act and it
is
proposed to exercise the power conferred by paragraph (a) of that
subsection-
(i)
The applicant shall, before exercising the said power inform the
person to whom the application relates of the nature of the medical
certificate and of the fact that such person may request a second
medical examination.
4. The
Plaintiff William Kiernan contends that Patrick Kiernan had a
statutory
duty to inform him of the nature of the medical certificate, and of the
fact
that he could request a second examination. Mr. Keane on behalf of Patrick
Kiernan disputes this. He says that his client Mr. Kiernan did not exercise
any power under the provisions of Section 5(1) of the Act. Section 5(1) of the
Act, he says, relates to taking the person to whom the application relates and
conveying him to the institution in which it is desired to have him received
and detained. Mr. Patrick Kiernan, he asserts, did not take the Plaintiff to
the hospital nor did he authorise anyone to do so. All he did was sign the
application, form. He maintains, that while he signed the application, he was
not the moving party and that he was acting at the behest of the
Gardaí.. The matters are set out in paragraphs (6) and (8) of the
Plaintiff's Affidavit:-
"(6)
I further state that following this I approached the local Garda, Garda
Keavney and was informed by Garda Keavney that he would have a word with the
Plaintiff. I say however that the behaviour continued and some weeks later on
or about the middle to end of August, I spoke once more with Garda Keavney. I
say on this occasion Garda Keavney told me that I should consider having the
Plaintiff admitted to St. Loman's Hospital and told me that 'all he needs is a
couple of tablets' . I say that subsequently that Garda Keavney and Nohilly
came out to me at my place of work and on that occasion Detective Garda
Nohilly advised me to have the intended Plaintiff assessed as to whether or
not he should or should not be placed into St. Loman's Hospital and said in
particular that 'he will be a new man when he comes out' and further stated
'you would be doing him a good turn'.
(8)
I say that on or about the 1st of September 1995, I, having been
advised
by the Garda and in particular Garda Keavney to go to Dr. Harris in
order
that Dr. Harris would prepare the appropriate letter as I was advised by
Garda
Keavney.
I say that I accordingly approached Dr. Harris and
Dr.Harris
gave me a letter that I say and believe from my recollection may
have
been the same form as is now exhibited in the intended Plaintiff's
Affidavit,
and I then brought the letter to Garda Keavney's house as directed
by
Garda Keavney.
(9) I
say that following the delivery of this letter to Garda Keavney as
requested
I did not see either Garda Keavney or Garda Nohilly again until
the
night of the 1st September 1995 Garda Keavney called to me to say they
had
taken the intended Plaintiff in and informed me etc".
5. In
effect, he is claiming that this was not his application, but that of the
Gardaí, and that he was acting as an agent of the Gardaí, and
they were not acting on his behalf. However, I cannot accept this. The
application was made by the proposed Defendant having been advised by the
Gardaí. He brought the application, he got the letter from Dr. Harris
as he was advised by Garda
Keavney
and he signed the application form. It seems to me in those
circumstances
that the Plaintiff's own Affidavit does not assert that he was the agent of the
Gardaí. The fact that the words
"I
then brought the letter to Garda Keavney's house as directed by Garda Keavney"
does not sustain the proposition argued for by Mr. Keane. In my view, the
Gardaí were persons authorised by the applicant to convey the proposed
Plaintiff
to the hospital. The proposed second named Defendant does not state otherwise
and in the context of him being the Applicant for the detention, it seems to me
that the Gardaí were authorised, at least by natural implication. That
being so, it appears to me that the second named Defendant was exercising
powers under Section 5 (1)(a) of the Mental Treatment Act, 1953. He does not
say that he was not aware of what the Gardaí were doing, nor does he say
that it was not on his behalf. In those circumstances it seems to me that the
provisions of Section 5(3)(a)(i) apply and that there was an obligation on the
proposed second named Defendant to inform the Plaintiff that he was entitled to
a second medical examination. In my view, therefore, he did not take
reasonable care.
6. I
am not satisfied on the evidence before me that Patrick Kiernan was not
acting
in good faith. In this regard I accept the point made by Mr.Keane that
the
fact that he consulted his brother Eamonn and alerted him to the position early
in the morning of the 2nd September seems to me to be strong evidence of his
bona fides, and the mere fact of a land dispute between them is not prima
facie evidence of mala fides. Because, however, he failed to act with
reasonable care in all the circumstances, I will allow the proceedings to be
instituted against him.
3. The
Midland Health Board
(1) It
is submitted that the Health Board showed lack of care in failing to
make
themselves aware that the Applicant had not offered a second
medical
examination to the proposed Plaintiff. I cannot accept this
proposition.
It would be, in my opinion, quite unreasonable to demand
that
the Health Board should see to it that another party carried out
their
legal obligations.
(2) It
is also contended that the Health Board should not have accepted the
certificate of Dr. Harris on its face, particularly in view of the accompanying
letter, and of the fact that the examination on the night of the 1st or the
early hours of the 2nd of Dr. Babar was favourable to the Applicant. I cannot
accept that there was a duty on the Health Board, at least at that stage, to
look behind the certificate. The certificate was a certificate in the
prescribed form, and it was purported to be signed by a General Practitioner.
In my view, the Health Board were quite entitled to rely on it as being what it
said. Neither the medical examination carried out in the hospital that night,
nor the letter which accompanied the certificate, made it incumbent on the
Health Board to go behind what on the face of it appeared to be a valid medical
certificate.
7. In
those circumstances it seems to me that the Plaintiff should not be allowed to
proceed against the Health Board.
© 1998 Irish High Court
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