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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.

This is an application pursuant to Section 206 of the Mental Treatment Act, 1945 which provides as follows:

"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.

Section 5(3)(a) of the Act says:

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.