THE HIGH COURT
JUDICIAL REVIEW
		1997 No. 211 JR
BETWEEN
GERARD O'HALLORAN
		APPLICANT
AND
THE MINISTER FOR JUSTICE, THE ATTORNEY GENERAL, IRELAND, THE DIRECTOR OF THE CENTRAL MENTAL HOSPITAL AND 
SOUTHERN HEALTH BOARD
		RESPONDENTS
AND BY ORDER
THE MINISTER FOR HEALTH AND CHILDREN 
		ADDED RESPONDENT

Judgment of Mr. Justice Geoghegan delivered the 30th day of July, 1999

	This judgment is supplementary to a judgment which I delivered on the 31st day of July, 1998.  The proceedings are in the nature of an application for judicial review of the Applicant's continued detention in the Central Mental Hospital, Dundrum.  The Applicant has sought 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 for Justice, Equality and Law Reform 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.  
	These matters were all fully considered and dealt with in my earlier judgment.  I made it clear in that judgment that irrespective of what the legal obligations of the Fifth named Respondent, the Southern Health Board, might be there could be no question of an Order of Mandamus against it as there had never been a formal direction by the Minister to the Southern Health Board requiring the Board to accept the Applicant.  That is still the position.  The Minister, understandably, would be reluctant to give such a direction without being absolutely satisfied that he was entitled in law to do so.  I indicated in the earlier judgment that this Court could not consider making any Order of Mandamus against the Minister without further considerable argument as to what exactly the statutory powers of the Minister were.  I took the view that the question had not been fully researched and that at any rate there was prima facie evidence of other factors influencing the Minister in addition to the questions of law.  I indicated also that with the co-operation of the Minister for Health and Children who was being added as a party, it should be possible to obtain an independent inspection and opinion on the merits of moving the Applicant to Cork.  The case was adjourned for these two matters to be attended to.  Eventually, an independent report was obtained which supported the sending of the Applicant to Cork.  But the question of the legal powers of the Minister remained unresolved and the Southern Health Board has consistently adopted the attitude that whatever about other problems in relation to taking the Applicant, the Board was not prepared to subject itself in relation to the clinical treatment of the Applicant to directives coming from the Department of Justice and was not prepared to treat the Applicant in a regime under which the Board was effectively subject to directives from the Department.  The position, therefore, remains deadlocked and eventually it was has all come back before this Court for a determination as to the legal powers of the Minister.  Those powers were ably debated before me recently and very helpful legal submissions have been lodged. 
	Having very carefully considered the position, I have come to the conclusion that there is no easy solution.  This is hardly surprising given that the detention of the Applicant is pursuant to an Act of 1883 [to be precise, Section 2 of the Trial of Lunatics Act, 1883].  There has been no modern amending legislation to incorporate more modern methods of treating and rehabilitating persons found by a jury to be "insane".
	Section 2(1) of the Trial of Lunatics Act, 1883 provides for the well known special verdict of "guilty but insane".  Subsection (2) of the same Section then goes on to provide as follows:-

	"Where such special verdict is found, the Court shall order the accused to be kept in custody as a criminal lunatic, in such place and in such manner as the Court shall direct till her Majesty's pleasure shall be known; and it shall be lawful for her Majesty thereupon, and from time to time, to give such order for the safe custody of the said person during pleasure, in such place and in such manner as to her Majesty may seem fit."

The 1883 Act applied to England, Wales and Ireland but insofar as it applied to Ireland "the Lord Lieutenant" was to be substituted for "her Majesty".  Arguments have been put forward in the written submissions that it is implied in subsection (2) that there would be more than one place where a person found guilty but insane could be detained.  I think, however, that it was partly overlooked in the submissions that this particular Act did not apply to Ireland only and therefore the position may be none too clear.  But the reference to "in such manner" added to the words "in such place" would seem to indicate quite a wide discretion on the part of the Executive.  At the hearing, however, Counsel for the Applicant conceded that some limitation must be placed on the words.  It could not have been intended by Parliament that a person could be sent to any house or building irrespective of who owned it or for what purposes it was owned.  Furthermore, with regard to Ireland, the Act cannot be interpreted in isolation from earlier and unrepealed enactments.  I think it important, therefore, with a view to putting the matter in context to refer to certain enactments in Ireland which predated the 1883 Act.  Section 17 of the Lunacy (Ireland) Act, 1821 provided that upon a trial on indictment if the accused should appear to the jury to be insane, it should be lawful for the Court to direct that such finding be recorded and thereupon to order such person to be kept "in strict custody" and to be taken care of until the pleasure of the Lord Lieutenant or other Chief Governor or Governors of Ireland for the time being should be known.  Section 18 of the same Act provided that whenever and as soon as there should be a lunatic asylum built or maintained, either wholly or in part, in any county, county of a city or county of a town, wherein the prisoner in such a case should be tried or found insane then and from thenceforth such insane person should, without delay, be removed to such asylum and be kept therein so long as the prisoner should be detained in custody.  It would appear from that Section that the original intention was that such a person would be detained in the lunatic asylum in the district in which he was tried. 
	A new regime was introduced by the Central Criminal Lunatic Asylum (Ireland) Act, 1845.  This Act in its short title was described (in part) as "an Act for the establishment of a Central Asylum for insane persons charged with offences in Ireland".  The Act went on to provide for the Commissioners of Public Works acquiring and building an Asylum and by Section 8 of the Act, having recited the earlier provisions in the 1821 Act, went on to provide that as soon as the Central Asylum should be erected pursuant to the Act, it should be lawful for the Lord Lieutenant to order and direct "that all criminal lunatics then in custody in any lunatic asylum or gaol, or who shall thereafter be in custody, shall be removed without delay to such Central Asylum, and shall be kept therein so long as such criminal lunatics respectively shall be detained in custody".  Some years after that the Central Asylum (now the Central Mental Hospital) was erected pursuant to the Act.  It was a long time in existence as of the passing of the 1883 Act and I think that despite the general wording in the 1883 Act which I have already pointed out applied to England and Wales also, it would have been generally understood that the Central Criminal Lunatic Asylum was the place in Ireland for the Lord Lieutenant to direct an insane prisoner to be sent.  That indeed has been the history ever since.
	The question now arises, can the Executive direct a public hospital under the control of the Health Board to take in a person found guilty but insane and detain and treat such person subject to overriding directions from the Minister for Justice, Equality and Law Reform.  In my view, this cannot be done without an enactment expressly permitting it and there does not appear to be any.  Counsel have helpfully cited a number of quasi analogous statutory provisions concerning transfers to and from the Central Mental Hospital but none of them deal with the question of whether the Minister can compulsorily direct a regional or local mental hospital to take a patient from the Central Mental Hospital.  The 1821 Act cited above provided for the establishment of District Lunatic Asylums.  The business of running these asylums finally became vested in the County Councils under Section 9 of the Local Government (Ireland) Act, 1898.  In a footnote to the citation of that Section contained in Vanston's Local Government, Section Edition, Volume I at p.10, there is a helpful summary of the position relating to these District Asylums.  Most of them were originally provided under the 1821 Act.  The expenses incurred in their erection and establishment were at first entirely defrayed by advances out of the consolidated fund but these advances were subsequently repaid on a local basis through grand jury presentments.  They would have ultimately become an expense on the rates after the Local Government (Ireland) Act, 1898.  The business of managing these hospitals passed to the authorities and joint authorities under the Mental Treatment Act, 1945 and subsequently to authorities under the Health Authorities Act, 1960 but ultimately to the current Health Boards.  In my view, the Health Boards are entirely autonomous as far as clinical treatment is concerned and whatever of the Minister for Health and Children they cannot under any circumstances be under the directions of the Minister for Justice, Equality and Law Reform.  But even in the case of the Minister for Health and Children, I agree with the submissions put forward by the Southern Health Board that the Minister's powers under Section 38 of the Health Act, 1970 are limited.  Under subsection (2) of that Section:-

	"The Minister may give to a Health Board such direction as he thinks fit in relation to the provision or maintenance of any premises provided and maintained under subsection (1) and in relation to the arrangements for providing services therein, and the Health Board shall comply with any such direction."

I am satisfied that this does not give the Minister any power to give directions in relation to clinical treatment.  I think, however, that the Minister would be empowered to give directions to a Health Board covering, in general, the situation where a patient in the Central Mental Hospital, in pursuance of a condition of a temporary release, becomes a voluntary patient of the Health Board Hospital that no permanent discharge of that patient would be made without prior notice to the Minister for Justice, Equality and Law Reform and/or the Central Mental Hospital. 
	In my opinion, the Applicant here is ordinarily resident in Cork and cannot be said to be ordinarily resident in Dublin just because he is detained in the Central Mental Hospital.  In a sense, the Central Mental Hospital is his extraordinary residence.  His ordinary residence is in Cork.  I am further of the view that Section 2 of the 1883 Act can be given a broad interpretation and that it is open to the Executive, via the Minister for Justice, Equality and Law Reform, to sanction temporary release of the Applicant on conditions, one of which would require him to be accepted as a voluntary patient in a suitable mental hospital of the Southern Health Board and another of which would be that upon any discharge of him by the Cork Hospital or any departure by him from the Hospital, he would agree to return or be returned to the Central Mental Hospital for the future manner of his detention to be considered by the Minister.  If this course was adopted, the authorities of the Health Board Hospital would have to be left free to make all the day to day decisions relating to the Applicant such as outings or short release without reference to the department.  At this stage, I am not necessarily advocating this course but I am indicating that, in my view, this is the only lawful way by which the desired result can be achieved in the absence of a consent from the Health Board.  It will be a matter for the Minister, having taken advice to decide whether some such regime should be proceeded with.  It does appear from the latest psychiatric reports that continued detention in the Central Mental Hospital is not the desirable course.  But it will be for the Minister now to reconsider the whole matter in the light of this judgment.