MS Justice Mary Laffoy said that at the core of the controversy between the applicant and the director of the hospital and the Minister was a dispute as to the test which the Supreme Court stipulated should be applied by the Executive in determining the duration of the detention.

Counsel for Gallagher had submitted that a single, and largely clinical, test was to be applied, and it was whether the person was suffering from a mental disorder such as to warrant his continued detention.

The proper approach, it had been submitted, was to consider first whether the applicant was suffering from a mental disorder and, if so, to consider whether it was a disorder such as to warrant his continued detention. The mental condition had to be one which was present and persistent and account might be taken of future dangerousness only as a component of the person's mental condition, not divorced from it.

Counsel for the hospital and the Minister, Mr Michael Carson SC, had submitted that the key criterion was whether it was safe to release the person. In determining whether it was safe to release or not, the Executive was entitled to have regard to both the past and present health of the person and the prognosis. Detention might lawfully continue if the person detained was dangerous but not mentally ill.

Ms Justice Laffoy said that in her view the terms "mental health" and "mental disorder", as referred to in the Mental Treatment Act, were clearly not intended to have technical meanings ascribed to them.

Mental ill health in this context encompassed all forms of mental illness and disorder recognised by psychiatry - major illnesses such as schizophrenia and manic depression, lesser mental illnesses or neuroses and personality disorders. The foundation of such a determination was the evidence of experts.

The test of dangerousness, whether attributable to mental ill health or not, failed to take account of the clear requirement in the formulation of the test by the Supreme Court which linked continued detention or release to the existence or non existence, respectively, of mental ill health.

Ms Justice Laffoy, on the basis of the evidence, including what was revealed in the considerable amount of internal departmental documentation which had been put in evidence, found that no decision was made by the Minister on Gallagher's application for release until after April 22nd 1996. She found that a decision was made by the Minister on the application between April 22nd and May 8th, 1996, and that this decision was precipitated by the institution of the current inquiry.

The decision was to accept the advice of the advisory committee, which she understood entailed a commitment to implement its recommendations - the programme of outings. The Government had approved that decision. In an aide memoire for Government it had been stated that the Minister intended to inform the court of her decision to begin the programme of temporary release.

She said it had been submitted on Mr Gallagher's behalf that there had been a culpable failure on the part of the Minister to address and decide the central issue which arose for decision on his application for release, namely, whether he was suffering from any mental disorder warranting his continued detention in the public or private interest.

It had been submitted that this failure rendered his detention unlawful and unjustified. In light of the factual situation which prevailed at the time of the hearing, that ground, in her view, was not sustainable. The Minister had decided, albeit belatedly, to accept the advice of the committee.

While the committee had not spelled out in express terms its finding on the central issue, it was implicit in its finding that it was not satisfied that the state of the applicant's mental health was such that it was safe to grant immediate unconditional release.

Ms Just ice Laffoy said that this was implicit in the fact that the committee recommended only limited periods of freedom, and only on a trial basis, that the releases should be monitored and that the matter should be reviewed in a year.

In her view, it had to be inferred that, in accepting the committee's advice and adopting its finding, the Minister had concluded that Mr Gallagher was suffering from a mental disorder warranting his continued detention.

It had been further submitted that there had been a breach of the applicant's rights in that he was entitled to, but had not been given, a prompt decision on his application. While the delay had infringed his rights, the infringement was not of the order to render his detention unlawful, and it had been rectified, the decision having been made.

She said it had been contended that the programme of release offended the principle of proportionality in that the Minister's proposed 18 hours of freedom out of 4,368 hours of detention would not have provided any significant useful information in a review situation.

She held that Gallagher was entitled to have the recommendations of the committee properly implemented in accordance with its intentions. This involved his being afforded freedom of sufficient frequency and duration as to test him in a non institutional environment for the purpose of aiding determination of whether he was suffering from a mental disorder warranting his continued detention.

The Executive was committed to a programme which, if successful, must inevitably lead to more frequent and longer periods of freedom for Gallagher and might ultimately lead to release.