JOHN Gallagher was not mentally ill on the day in 1988 when he killed two women, but suffered from a serious personality disorder, the clinical director of the Central Mental Hospital (CMH) told the High Court yesterday.
The three judge divisional court of the High Court was hearing the opening of an inquiry into the continuing detention of Gallagher in the CMH. The State is opposing his release.
Gallagher, of Lifford, Co Donegal, was found guilty but insane of the murder of his former girlfriend, Ms Anne Gillespie, and her mother, Ms Annie Gillespie, in the grounds of Sligo General Hospital on September 18th, 1988.
Dr Charles Smith, clinical director, in an affidavit said the tendency towards both anger and violence in a person suffering from this type of personality disorder lessened as they aged and that person slowly matured. He was of the opinion that Gallagher had matured during the course of his detention in the Central Mental Hospital.
He was of the opinion that Gallagher was not, at the time of the swearing of the affidavit, mentally ill in the sense that he could be categorised as insane and Gallagher was not mentally ill on the date of his admission to the CMH in 1988.
He advised a phased release: "It is not in the best medical interests of Gallagher at the present time that he be immediately discharged into the general community without completing satisfactorily a suitable phased release programme.
Dr Smith said the phased release programme was within the powers and duties of the Government. Gallagher was lawfully detained as a patient in the CMH. He was not entitled to an order directing his release from the custody of the clinical director.
Mr Donal O'Donnell SC, for Gallagher, said the application now before the court was under Article 40 (4) of the Constitution. A guilty but insane verdict had been returned which amounted to an acquittal.
The Executive and not the courts made the decision on a person should be released. Advisory committees were set up to advise the Minister for Justice in such a case. There had been three such committees in the Gallagher case, the last of which resulted in advice on July 31st, 1995.
This advice was based on Dr Smith's opinion that Gallagher would not be a potential danger and recommended that there be periods of freedom leading to a phased release.
Mr O'Donnell said there was no evidence before the committee or the Minister which suggested that Gallagher was suffering from a mental disorder that warranted his continued detention.
The committee's advice went to the Minister but she did not make the decision on that central issue of whether or not Gallagher suffered from a mental disorder that warranted his detention.
On May 6th, nearly a year after the advice of the committee, a decision was communicated to Gallagher not a decision on the issue, but one permitting him a temporary period of freedom accompanied by staff for one afternoon a month for six months.
There was no indication as to the purpose of these limited outings or what would happen at the end of six months. Gallagher's continued detention was unlawful and could not be justified.
In his affidavit, Dr Smith said that when Gallagher began his detention in the CMH he was under the care of Dr Art O'Connor.
"Dr O'Connor, for the duration that John Gallagher was under his direct care, found no evidence that John Gallagher was suffering from any mental illness in the sense that he could be categorised as insane," Dr Smith said.
Dr O'Connor found evidence that Gallagher suffered from a personality disorder which included elements of immaturity, impulsiveness and egocentricity. Gallagher remained under Dr O'Connor's care until January 1995 when he (Dr Smith) took over responsibility for his care.
Dr Smith said he was familiar with Gallagher's medical history. He was of the opinion that Gallagher was not mentally ill in the sense that he could be categorised as insane, also that Gallagher was not mentally ill on the date of admission to the CMH.
He was aware that Dr O'Connor was of the medical opinion that Gallagher was not mentally ill on September 18th, 1988, when he killed both women.
"Having reviewed all the relevant medical reports and taking into account the various psychiatric assessments I have carried out, I am in agreement with Dr O'Connor's medical opinion in relation to John Gallagher's mental condition on September 18th 1988," Dr Smith said.
He agreed with Dr O'Connor that Gallagher had a serious personality disorder. The tendency towards anger and violence in a person suffering from this type of disorder lessened as they aged.
It was not until recent times appropriate to consider Gallagher as a suitable person to be included in a phased release programme. A significant factor in assessing the future dangerousness of Gallagher was that he had previously killed two women in violent circumstances.
"I am of the medical opinion that John Gallagher should be permitted, at the present time, to be included in a phased release programme from the CMH," Dr Smith said. It was in the best medical interests of Gallagher that he participate in the monitored and supervised phased release programme being offered to him.
If Gallagher absconded during the course of a phased release programme he would not, by reasons of that fact alone, be imminently dangerous to the general public.
It was not in the best medical interests of Gallagher that he continue to be detained indefinitely as a patient at the CMH. He was a suitable person to be included in a phased release programme with suitable monitoring and supervision.
Mr Sean Aylward, principal officer in the Department of Justice, said in an affidavit there was ample evidence before the Advisory Committee that it was not satisfied to recommend to the Minister that Gallagher should be released immediately, and from which the Minister could properly conclude that it was not safe to order his immediate release.
It was entirely reasonable for the Minister to have regard to not just his present state of mental health, but also his past state of mental health from the time immediately preceding the killing and throughout his period in custody.
It was also reasonable for the Minister to have regard to the opinions and views which had been expressed concerning his future dangerousness, ability to cope with the stresses and pressures that would inevitably bear upon a person in Gallagher's position, who had been in detention for a number of years, if he was to be suddenly released.
Mr O'Donnell said in these proceedings Gallagher was not seeking sympathy from the court or anyone else. The "awful events" of September 1988 had used up all the sympathy that could be provided, and that was due to the victims. Gallagher did not seek clemency or indulgence from the court, but what he did seek was justice.
There had been an attempt made to characterise these proceedings as an application for immediate release but that had not been Gallagher's case at any stage that if Gallagher was entitled to release, that release needed to be immediate and could not be phased.
His submission was that Gallagher may be released on a phased basis, as long as it was phased and led to release and was concerned with his reintegration into society. However, on a strict point of law under Article 40, he was applying for immediate release.
The hearing continues today.