Court of Appeal
New South Wales
Case Title: Attorney General for the State of New South Wales v XY Medium Neutral Citation: [2014] NSWCA 466 Hearing Date(s): 5 December 2014 Decision Date: 24 December 2014 Before: Beazley P at [1];
McColl JA at [111];
Basten JA at [120]Decision: (1) Affirm the decision of the Mental Health Review Tribunal delivered on 10 September 2014.
(2) Otherwise dismiss the appeal.
(3) Order that the Attorney pay the respondent's costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: MENTAL HEALTH - forensic patient - release - order for unconditional release upon transfer to a medium security mental health unit in Queensland - test of serious endangerment of public - whether care of a less restrictive kind available upon release - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43(a) and (b), s 47
MENTAL HEALTH - forensic patient - transfer - whether transfer of a forensic patient permitted under a corresponding law of Queensland - transferee ceasing to be forensic patient in New South Wales - Mental Health Act 2007 (NSW), s 176
STATUTORY INTERPRETATION - resolving inconsistency between provisions in a single statute - provisions introduced contemporaneously - reading statute as a whole - giving each provision work to do - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43, s 47(3)
WORDS AND PHRASES - "corresponding law" - "seriously endangered" - "care of a less restrictive kind" - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43Legislation Cited: Acts Interpretation Act 1954 (Qld), ss 12, 14H
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 74, 76E, 77A; Pt 5
Mental Health Act 2007 (NSW), ss 68, 109, 170, 174, 176; Ch 8, Pt 2
Mental Health Act 2000 (Qld), ss 183, 185, 507, 508
Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW)
Mental Health Regulation 2013 (NSW), cll 23, 26, 27; Pt 8, Div 3
Mental Health Regulation 2002 (Qld)Cases Cited: Australia Gaslight Co v Valuer-General (NSW) (1940) 40 SR(NSW) 126
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
In the Matters of Major Reviews of Percy, Farrell and RJO (1998) VSC 70
Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409; (2011) 214 IR 448
Life Insurance Co of Australia Ltd v Phillips [1925] 36 CLR 60
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- Case
- [2014] NSWCA 466
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Tribunal had erred in law by ordering the unconditional release of a forensic patient upon transfer to a facility in another State. Specifically, the appeal raised questions about the meaning of "seriously endangered" and "care of a less restrictive kind" as contemplated by section 43 of the *Mental Health (Forensic Provisions) Act 1990*. It also considered whether a transfer to a Queensland facility, permitted under a "corresponding law," would result in the patient ceasing to be a forensic patient in New South Wales, as provided by section 176 of the *Mental Health Act 2007*. The court also had to resolve potential inconsistencies between sections 43 and 47 of the *Mental Health (Forensic Provisions) Act 1990*.
The Court of Appeal affirmed the Tribunal's decision, holding that the Tribunal had correctly applied the relevant legal principles. The court emphasised that the primary consideration under section 74 of the *Mental Health Act 2007* was whether the patient was suffering from a mental illness and whether care was necessary for their own protection or the protection of others from serious harm. The court found that the Tribunal had properly considered the report from the forensic psychiatrist, which indicated that the patient's safety and the safety of the public would not be seriously endangered by release, and that care of a less restrictive kind was available in Queensland. The court also found that section 176 of the *Mental Health Act 2007* operated to terminate the patient's status as a forensic patient in New South Wales upon admission to the Queensland facility, thereby rendering the unconditional release order appropriate.
The appeal was dismissed, and the decision of the Mental Health Review Tribunal was affirmed. The Attorney-General was ordered to pay the respondent's costs.
Orders
Orders of the court
(1) Affirm the decision of the Mental Health Review Tribunal delivered on 10 September 2014.
(2) Otherwise dismiss the appeal.
(3) Order that the Attorney pay the respondent's costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Section 74, which appears in Pt 5, Div 7, "Tribunal functions", provides:"74 Matters for considerationWithout limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part:(a) whether the person is suffering from a mental illness or other mental condition,(b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm,(c) the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration,(d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release,(e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody." I have already referred to s 77A(6), which provides for a right of appeal at the instance of the Attorney General on a question of law from a decision of the Tribunal. Section 77A further provides:"(9) After deciding the question the subject of an appeal under this section, the Court may, unless it affirms the determination of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal. (10) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Court remitted to the Tribunal. ...(13) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original determination was made, may be given on the rehearing. ..." The Mental Health Act, s 68(a)-(c), (f) and (g) and s 176 are also relevant to the issues raised on the appeal. Those sections provide as follows:"68 Principles for care and treatmentIt is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder:(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,(b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community ......(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,(g) the age-related, gender-related, religious, cultural, language and other special needs of people with a mental illness or mental disorder should be recognised ......176 Transfer of patients from this State(1) A person who is detained as an involuntary patient or forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations.(2) A person who is transferred to a mental health facility in another State under this section ceases to be an involuntary patient or forensic patient on admission to the facility.(3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.(4) The regulations may make provision for or with respect to the following matters:(a) procedures for authorising the transfer of a patient under this section and for notifying any such transfer or proposed transfer,(b) criteria for authorising the transfer of a patient under this section,(c) the handing over of custody of any such patient by persons in this State,(d) the persons (including interstate persons) who may take a patient to a mental health facility in another State under this section,(e) the mental health facilities to which a patient may be taken under this section and the places taken to be mental health facilities for the purposes of this section...."