JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network

This matter concerned an appeal to the Court of Appeal of New South Wales by JKL, a forensic patient, by his tutor Jennifer Thompson, against a decision of the Mental Health Review Tribunal. The core dispute revolved around the Tribunal's power to order the transfer of a forensic patient to a mental health facility, specifically whether this power extended to specifying the timing of the transfer and the particular facility to which the patient should be moved.

The legal issues before the Court of Appeal were whether the Tribunal had the power to order the transfer of a forensic patient to a mental health facility "when a bed becomes available," and whether the Tribunal had taken into account an irrelevant consideration by having regard to the availability of beds at a specific facility when exercising its power under section 48 of the *Mental Health (Forensic Provisions) Act 1990* (NSW). The Court was also asked to consider whether the power to transfer a patient included an implied incidental power to specify the timing of such a transfer.

The Court reasoned that the statutory context of section 48 of the *Mental Health (Forensic Provisions) Act 1990* (NSW) supported the consideration of "practicability" when exercising the power to make a transfer order. This included considerations relating to the availability of beds at a particular facility. The Court found that the Tribunal's power to order a transfer implicitly included the power to specify the timing and destination of that transfer, as this was necessary for the effective exercise of its statutory function.

Leave to appeal was granted, but the appeal was ultimately dismissed.