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1. This is an application for Judicial Review of the Applicant's continued detention in the Central Mental Hospital, Dundrum, for an Order of Mandamus directing the First named Respondent to make an Order directing the transfer of the Applicant to St Anne's Psychiatric Hospital, Shanakiel, Cork and for an Order of Mandamus directing the Minister to make and provide a place for the Applicant in that hospital and for an Order directing the Southern Health Board to receive and maintain the Applicant in that hospital.

The background to the application is as follows. The Applicant had been a patient in St Anne's Psychiatric Hospital, Shanakiel, Cork receiving treatment for manic-depression when he unfortunately killed a fellow patient by striking him on the head with a mop in the course of a minor argument. He was tried for murder in the Central Criminal Court on the 16 November, 1989 and the jury found him guilty but insane. Ever since he has been detained at the pleasure of the Government in the Central Mental Hospital, Dundrum. The medical consultants in that hospital have been of opinion for a considerable time that the Applicant was no longer dangerous and should no longer be detained in the Central Mental Hospital but should be transferred to an ordinary mental hospital in his own locality which is the Cork area. The Applicant wishes to be transferred back to St Anne's Psychiatric Hospital. The Minister for Justice has been advised of the position both by the hospital and by his own officers, including the Inspector of Mental Hospitals. An Advisory committee was set up to advise the Minister on applications for release from the Central Mental Hospital by persons found guilty but insane and that Committee considered the position of the Applicant. That Committee comprising Mr John Hedigan, SC, as Chairman, Dr John Owens and Dr John McCurdy advised that the Applicant continued to suffer from a mental disorder requiring his continued detention in the public and private interests. It was however the opinion of the Committee that the Applicant's mental disorder had responded well to treatment and that he did not require continued detention in the Central Mental Hospital. The nature of his illness was such that he would require to continue in supervised psychiatric treatment in the long term. The Advisory Committee recommended that he be transferred for continued treatment in a local psychiatric hospital in Cork. They further recommended that such treatment should initially be at in-patient level and that any future discharge arrangements should ensure supervision and regular review over a prolonged period. In these review procedures a serious view should be taken of any tendency toward alcohol abuse. The then Minister accepted the advice of the Committee and a decision in principle was made to permit the Applicant to move to the Cork hospital on particular terms and conditions but the Minister was then faced with a serious problem in implementing the decision. The hospital, supported by the Southern Health Board, clearly indicated an unwillingness to accept the Applicant and there was also vigorous opposition to the move expressed by members of the Applicant's family to the hospital and Southern Health Board and to the Department of Justice. The view of the Southern Health Board is neatly encapsulated in a letter from its Programme Manager, Mr O'Dwyer, to Dr Michael Kelleher, Clinical Director of St Anne's Hospital in Cork and I think it is worth quoting the letter in full. It reads as follows:-

"GERARD O'HALLORAN DOB 13/11/56

C/O Central Mental Hospital, Dundrum

Dear Dr Kelleher,

I wish to refer to previous correspondence regarding the above named and I now enclose for your information copy of letter dated 27 April, 1994 from John L. Keane & Son, Solicitors, Youghal on behalf of the family and copy of a letter dated 14 May, 1994 from Mr James O'Halloran on behalf of the family.

It is clear that the family are totally opposed to Mr O'Halloran's return to care in the Southern Health Board area. I have also spoken to Mr O'Hallorans sister and she has indicated to me that the family are extremely upset at the suggestion that Gerard be returned to Cork. They see him on a regular basis in Dublin and are convinced from their own contacts with him and from discussions with staff, that he is not in a position to return to Our Lady's Hospital. They also confirm that Gerard himself is happy to remain in Dublin and only indicated agreement to come to Cork on the false impression that he would be living in a flat in the city.

From the Board's perspective the family's viewpoint must be taken into account but furthermore, there is a major difficulty of trying to accommodate him in the only unit which we have available which would be the intensive care facility in St Kevin's. In this respect he would be back again amongst many of the patients who were present when the incident occurred and I do not think that this is fair to either Gerard or the other patients involved and would create tensions in the unit which I believe would result in an unsafe environment for all concerned.

In the circumstances therefore the Board is not in a position to provide the appropriate care for this patient. Taking everything into account and bearing in mind the interest of all involved, it is my view that Mr O'Halloran should remain in the Central Mental Hospital for the foreseeable future.

Yours sincerely."

For all practical purposes nothing further was done after that. It has never been entirely clear what the real view of the Minister and the Department was. There appear to have been several different factors involved and it is not clear which was regarded as the dominant one. The factors which I have in mind are as follows:

1. The strong views of the family.

2. The apparent unwillingness of the Southern Health Board and the hospital to take the Applicant.

3. The actual reasons given by the Southern Health Board for their negative reaction.

4. Worry as to what statutory powers (if any) the Minister had to force the hospital in Cork or even the Southern Health Board to take the Applicant in as a patient.

My own impression is that it was a combination of these factors and that the Minister and his advisers have never fully focused in on what their precise position should be, properly taking into account the rights of the Applicant and as to what their legal position is.

No formal direction was ever given by the Minister to the Southern Health Board to take in the Applicant as a patient and therefore there can be no question of this Court making any Order against that Board, even if the Minister had power to give such a direction. Before this Court would consider making any of the Orders of Mandamus sought against the Minister it would require considerable further argument as to what exactly the statutory powers of the Minister are. I do not think that this question has been fully researched and one of the difficulties is that the Minister is understandably perhaps adopting the tactical position that he may not have any powers to direct the transfer. But it is not in anybody's interest, least of all the Minister, that a decision should be made by this Court on the important matter of the statutory powers of the Minister without it being adequately researched and argued and I think that any further argument on this matter, if it becomes necessary, should be put forward on behalf of the Minister in a wholly independent way and without concern with the result of this particular case. However, that may never arise because in my view there are a number of steps which ought to be taken before any of these difficult questions should be considered. The Minister for Health has now been joined as a party and I think that between the two Ministers it should clearly be possible to obtain, perhaps through their own inspectors, an independent and up-to-date assessment as to the validity of the Southern Health Board's arguments for not receiving the Applicant and that these can then be incorporated in a detailed report and hopefully the Minister may be willing to put that report before this Court. It may yet be the case that a right decision for the Minister to take is to retain the Applicant in the Central Mental Hospital in all the circumstances. But I do not think that any definite decision of that kind has in fact been made and even if it has, it has not been made on the basis of any proper assessment.

I do not propose to make any Order in this case at present but I intend to adjourn it for mention to 10.30 am on Tuesday, the 13 October, 1998 with the idea that the two Departments can review the situation again in the meantime and hopefully may be prepared to carry out the independent assessment which I have suggested.