The release of John Gallagher just hours after his detention by Thames Valley Police on Friday raises a very obvious question: why wasn't he discharged from the Central Mental Hospital if his sanity could so quickly be determined by British doctors?
His release in Britain is not an indictment of the medical staff of the Central Mental Hospital, but rather a damning verdict on our legal system's inability to interface with psychiatry and the concept of the unsound mind.
By creating the medico-legal cul de sac of "guilty but insane", the present system effectively means patients such as Gallagher cannot be processed in a way that is fair to both them and their victims' families.
The Department of Justice could do worse than examine the comprehensive system which exists in the UK for such cases; a system which is completely transparent, fully resourced and which clearly delineates the relationship between mental health services, the police and the Home Office.
The 1983 UK Mental health Act (we are still operating 1945 legislation here) deals explicitly with patients like Gallagher. In the first instance, a British court will find a person either guilty or not guilty of a crime. If there is a guilty verdict, the court will convene at a later date to consider the issue of diminished responsibility.
The important point is that there is a defined guilty verdict in place, even if insanity is subsequently proven. The absence of such a process in the Republic was undoubtedly a factor in the decision not to pursue an extradition order in this case.
If the Gallagher case had occurred in Britain, a court would have ordered Gallagher's detention in a high-security hospital such as Broadmoor. The purpose of sending him there would be for a detailed assessment followed by treatment, if appropriate.
Most patients in Broadmoor suffer from personality disorders or psychotic illnesses. A patient may make progress under treatment, and a Mental Health Review Tribunal (MHRT) would then be convened to assess the appropriateness of his continued detention in a high-security unit.
The creation of such MHRTs in the Republic is the key to avoiding the fiasco of a case such as Gallagher's in the future. Operating independently as a "mobile court", a tribunal is made up of members of the legal profession, a doctor and lay people. Hearings are usually held in hospital with all participants including doctor and patient present.
The most useful powers of an MHRT would be to recommend a patient's transfer to another hospital or a supervised discharge. With the former, he could be transferred to a medium-secure unit for a further period of assessment; in other words he would begin to work his way down the detention ladder. Which brings us to yet another deficiency in the State; all we can offer at present is high security in the CMH, or discharge.
The concept of a supervised discharge, with restrictions, would also have had important benefits, not least for the Gillespie family.
It is accepted practice in the UK to ensure that a patient such as Gallagher would be prevented from travelling within a certain distance of the Gillespies. A breach of this restriction results in an immediate return to hospital detention.
The supervision of a patient discharged by an MHRT is comprehensive and carefully monitored. A conditional discharge includes the specific proviso that a patient remains liable to be recalled to hospital for further treatment.
The entire Gallagher episode reflects poorly on the Department of Justice and its ability to undertake proactive policy-making. The legal limbo of "guilty but insane" will now be addressed, according to the Minister for Justice; however, its equivalence with innocence is an incongruity which has been well flagged for at least two decades.
A comprehensive review of forensic psychiatry services, the relationship between the prison services and the Central Mental Hospital, and the need for a proper mental health tribunal system must be carried out as a matter of urgency.
That it took two doctors in Britain a matter of hours to effect the release of John Gallagher is a massive indictment of the Republic's system for dealing with mental illness.
It is not enough for the Minister to announce a closure of the legal loophole through which John Gallagher has escaped; nothing less than a root-and-branch review of the complex area where mental health and the law overlap will suffice.
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