JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network [2021] NSWCA 94 (19 May 2021) (Bell P at [1]; Macfarlan JA at [98]; Meagher JA at [99])


Catchwords:


COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s power to transfer forensic patients into a mental health facility includes power to specify when transfer is to occur and to what particular mental health facility a patient is to be transferred to.

MENTAL HEALTH – Mental Health Review Tribunal – jurisdiction – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – whether the Tribunal took into account an irrelevant consideration when it had regard to the availability of beds at a specific mental health facility in the course of exercising its power to make a transfer order under s 48 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act.

STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act.

STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether power to transfer a patient to or from a mental health facility includes power to specify when such a transfer should occur – implied incidental power – source of power – extent of implied incidental power.