O'Halloran v Minister for Justice and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IEHC 189
• Docket Number: [1997 No. 211 JR],No. 211 JR 1997
• Date: 01 January 2000

O'HALLORAN v. MINISTER FOR JUSTICE & ORS

JUDICIAL REVIEW

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

[1999] IEHC 189

No. 211 JR 1997

THE HIGH COURT

Synopsis

Medical Law

Mental health; judicial review; mandamus; powers of executive; detention of person found guilty but insane in Central Mental Hospital; the applicant sought an order compelling the respondent to direct his transfer from the Central Mental Hospital; whether respondent could direct a public hospital under the control of a health board to take in a person found guilty but insane and detain and treat such person subject to overriding directions from the Minister; s.2, Trial of Lunatics Act, 1883; s.38, Health Act, 1970.

Held: No such directions could be made without express statutory authority, which did not exist.

O'Halloran v. Minister for Justice - High Court: Geoghegan J. - 30/07/1999 - [1999] 4 IR 287 - [2000] 1 ILRM 234

The powers of the Minister for Justice over persons "guilty but insane" do not entitle the Minister to give directions in relation to clinical treatment. The absence of express permission denies the Minister authority to compulsorily direct a hospital to take a patient from the Central Mental Hospital. The court so held in refusing the application for mandamus.

Citations:

TRIAL OF LUNATICS ACT 1883 S2(1)

TRIAL OF LUNATICS ACT 1883 S2(2)

LUNACY (IRL) ACT 1821 S17

CENTRAL CRIMINAL LUNATIC ASYLUM (IRL) ACT 1845 S8

LOCAL GOVT (IRL) ACT 1898 S9

VANSTONS PUBLIC HEALTH 2ED V1 10

MENTAL TREATMENT ACT 1945

HEALTH AUTHORITIES ACT 1960

HEALTH ACT 1970 S38

HEALTH ACT 1970 S38(2)

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

2 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.

3 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 intluencing 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 effectivély 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.

4 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".

5 Section 2(1) of the Trial of...