Secretary, New South Wales Ministry of Health v W

[2020] NSWCA 212

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Secretary, New South Wales Ministry of Health v W [2020] NSWCA 212

Hearing dates:

24 August 2020

Date of orders:

9 September 2020

Decision date:

09 September 2020

Before:

Macfarlan JA at [1]
Meagher JA at [2]
Simpson AJA at [3]

Decision:

Declare that the Mental Health Review Tribunal does not have power in a review under s 38(4) of the Mental Health Act 2007 (NSW) to order the transfer of an involuntary patient from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility

Catchwords:

STATUTORY INTERPRETATION — jurisdiction – Mental Health Review Tribunal – Mental Health Act 2007 (NSW), s 38(4) – statutory construction – whether Mental Health Review Tribunal has power to order the transfer of an involuntary patient from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility

Legislation Cited:

Court Suppression and Non-Publication Order Act 2010 (NSW), s 8(1)(e)

Crimes (Administration of Sentences) Act 1999 (NSW), ss 130(1)(b), 158

Mental Health Act 2007 (NSW), ss 3, 4, 12, 13, 14, 19, 20, 22, 23, 24, 25, 26, 27, 34, 35, 37, 38, 68, 80, 84, 109, 162(1)

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 33, 41, 42, 64, 54

Supreme Court 1970 (NSW), s 69

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Attorney General for New South Wales v Melco Resorts and Entertainment Limited [2020] NSWCA 40

Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106

Category:

Principal judgment

Parties:

Secretary, NSW Ministry of Health (Applicant)
W (First Respondent)
Mental Health Review Tribunal of New South Wales (Second Respondent)

Representation:

Counsel:
J Emmett (Applicant)
G Wright (Respondent)

Solicitors:
Crown Solicitor for NSW (Applicant)
Legal Aid NSW (First Respondent)
Second Respondent (submitting appearance)

File Number(s):

2020/210529

Publication restriction:

Suppression order prohibiting publication of any information that reveals or tends to reveal the identity of the first respondent.

 Decision under appeal 

Court or tribunal:

Mental Health Review Tribunal of NSW

Date of Decision:

1 July 2020

Before:

Judge Lakatos SC, President
R McMurdo, Psychiatrist member
M Martin, Member

File Number(s):

C/ C10738

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent was convicted and sentenced to a term of imprisonment. While in custody the respondent was found to be a “mentally ill person” within the meaning of the Mental Health Act 2007 (NSW) (“the MH Act”) and was transferred as an involuntary patient to the Forensic Hospital where restrictions on liberty are more stringent than in other mental health facilities. While detained in the Forensic Hospital, a consensus emerged among health professionals that the respondent would be more appropriately accommodated in a less secure mental health unit. Enquiries were made by the respondent’s “treating team” for alternative accommodation; none has borne fruit.

On 5 May 2020 the respondent’s legal representatives sought an order from the Mental Health Review Tribunal (“the Tribunal”) that W be transferred to a facility less restrictive than the Forensic Hospital, and argued that the Tribunal had power to make such an order under s 38(4) of the MH Act. The Tribunal foreshadowed that such an order would be made, and the matter was referred to the President of the Tribunal for hearing. The applicant sought and was granted leave to appear and make submissions, contending that an order as foreshadowed would be beyond the jurisdiction of the Tribunal.

The Tribunal held that, on the proper construction of s 38(4) of the MH Act, the Tribunal has an implied power to order the transfer of an involuntary patient from one level of security facility to a lesser level of security facility, the precise facility being a matter for the health professionals treating the involuntary patient and the facility in consideration.

The applicant sought, pursuant to s 69 of the Supreme Court Act 1970 (NSW), (inter alia) declaratory relief, which, during the hearing, she accepted would be adequate.

Held, allowing the appeal (per Simpson AJA, Macfarlan and Meagher JJA agreeing):

1. There is nothing in the text of s 38(4) itself that lends any aid to the Tribunal’s construction. Section 38(4) calls for determination of two factual matters. The first is that the patient is a mentally ill person (within the meaning of s 14). The second is a composite, that no other care of a less restrictive kind, consistent with safe and effective care, is appropriate and reasonably available: at [64].

2. “No other care of a less restrictive kind” in s 38(4) of the MH Act is plainly intended to mean “no other care of a kind less restrictive than care in a mental health facility”. If those two factual matters are found, the Tribunal must make an order that the patient continue to be detained in a mental health facility for further observation or treatment or both: at [49], [64].

3. Not only is there nothing in s 38(4) that expressly (or implicitly) admits of an order by the Tribunal specifying the nature (or status) of the mental health facility in which the involuntary patient is to be detained, the proposed interpretation involves the introduction of words and concepts that are not present in the text of the provision. An order, as the Tribunal suggested would achieve the intention of subs (4), that the patient continue to be detained in “the mental health facility in which the patient is detained” would be inconsistent with the power in s 80 to transfer patients between facilities: at [67], [71].

Judgment

1. MACFARLAN JA: I agree with Simpson AJA.

2. MEAGHER JA: I agree with Simpson AJA.

3. SIMPSON AJA: The substantive issue in this proceeding concerns the proper construction of one subsection (s 38(4)) of the Mental Health Act 2007 (NSW) (“the MH Act”). A preliminary issue arose, but appears to have been resolved, concerning the standing of the applicant to bring the proceeding, in which she sought, pursuant to s 69 of the Supreme Court Act 1970 (NSW), declaratory relief and orders in the nature of prerogative orders in relation to a decision of the President of the Mental Health Review Tribunal (“the Tribunal”) of 1 July 2020.

4. Section 38(4) of the MH Act is in the following terms:

“38    Purpose and findings of reviews of involuntary patients

...

(4)   If the Tribunal determines that the patient is a mentally ill person and that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient, the Tribunal must make an order that the patient continue to be detained as an involuntary patient in a mental health facility for further observation or treatment, or both.”

Parties to the proceedings

5. The applicant is the Secretary of the Ministry of Health (“the Secretary”). The first respondent is an involuntary patient who is detained in a mental health facility pursuant to the provisions of the MH Act (to which it will be necessary in due course to refer in some detail). The second respondent is the Tribunal, which has filed a submitting appearance.

6. At the commencement of the hearing the Court made orders, pursuant to s 8(1)(e) of the Court Suppression and Non-Publication Order Act 2010 (NSW):

(i)    prohibiting publication of any information that reveals or tends to reveal the identity of the first respondent;

1. that the first respondent be identified in the proceedings by the pseudonym “W”; and

2. that these orders are operative throughout the Commonwealth and for the duration of the first respondent’s life.

Those orders are necessary in the public interest in order to give effect to s 162(1) of the MH Act, which prohibits, without the consent of the tribunal (which has not been given), the publication of (inter alia) the name of any person to whom a matter before the Tribunal relates. The public interest includes avoiding unnecessary distress or embarrassment to the person concerned.

Background

7. The following account uses terminology drawn from the MH Act. The terms used will be explained in the next section of these reasons.

8. On 28 August 2018 W was convicted in the Local Court of an offence of damaging property by fire or explosives. She was sentenced to a term of imprisonment of 9 months, with a non-parole period of 3 months, commencing on the day it was imposed. The non-parole period expired on 27 November 2018. The sentence expired on 27 May 2019.

9. As the sentence was one of less than 3 years, it was, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the Administration of Sentences Act”), taken to be subject to a parole order directing W’s release at the end of the non-parole period. On 6 December 2016 W was found to be a “mentally ill person” within the meaning of the MH Act. On 22 October 2018 she was transferred to the Forensic Hospital, which, as explained below, is a “declared mental health facility”. On transfer W became a “correctional patient” (Mental Health (Forensic Provisions) Act 1990 (NSW) (the “Forensic Provisions Act”), s 41).

10. On 23 November 2018, pursuant to s 130(1)(b) of the Administration of Sentences Act, the Parole Authority revoked the statutory parole order on the ground that W posed a serious and immediate risk to her own safety.

11. W ceased to have the status of “correctional patient” on the expiration of her sentence on 27 May 2019 (Forensic Provisions Act, s 64(b)) and was thereafter classified by the Tribunal as an involuntary patient. She has been detained in the Forensic Hospital, pursuant to successive orders of the Tribunal, since 22 October 2018.

12. In accordance with the requirements of s 37 of the MH Act, W has been periodically reviewed by the Tribunal. A consensus has emerged among the health professionals who have assessed her for the purpose of those reviews that, although she continues to be a mentally ill person requiring detention in a mental health facility, she would be more appropriately accommodated in a less secure mental health unit. That is because the Forensic Hospital is situated adjacent to a secure correctional facility (Long Bay Correctional Centre) and is designed predominantly for correctional or forensic patients. Restrictions on liberty are more stringent than in other mental health facilities.

13. Accordingly, enquiries have been made by W’s “treating team” for alternative accommodation for her. These enquiries appear to have been made directly to individual facilities in various Sydney locations. None has borne fruit. Various reasons have been given for refusal, including that W had no geographic association with the location in which the facility was situated.

14. On 5 May 2020 W’s legal representatives sought an order from the Tribunal that W be transferred to a facility less restrictive than the Forensic Hospital, and argued that the Tribunal had power to make such an order under s 38(4) of the MH Act. The Tribunal foreshadowed that such an order would be made, and that if it were not complied with by 16 June 2020 the matter would be relisted before the President of the Tribunal.

15. The matter was then referred to the President and a hearing was listed for 24 June 2020. Having regard to the issues before the Tribunal, the Secretary sought and was granted (over the opposition of counsel for W) leave to appear and make submissions. The Secretary contended that an order as foreshadowed would be beyond the jurisdiction of the Tribunal.

16. The Tribunal (constituted by the President and two other members) held, contrary to the Secretary’s contention, that, on the proper construction of s 38(4), the Tribunal has an implied power to order the transfer of an involuntary patient from one level of security facility to a lesser level of security facility, the precise facility being a matter for the health professionals treating the involuntary patient and the facility in consideration. It is clear that the Tribunal proposes to make an order to that effect unless, by decision of this Court, it is held to lack the power to do so.

17. By summons filed on 17 July 2020 the Secretary sought the following orders:

“1.   Order in the nature of prohibition, prohibiting the Mental Health Review Tribunal of New South Wales (“the Tribunal”) from purporting to make an order of the kind contemplated by paragraph 65 of its reasons delivered 1 July 2020.

2.

Order in the nature of mandamus, requiring the Tribunal to exercise its power under section 38(4) of the Mental Health Act 2007

(“MH Act”) according to law.

3. Declaratory relief that the Tribunal does not have power in a review under section 38(4) of the MH Act to order the transfer of the First Respondent from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility.

4.   Such other order as the Court thinks fit.”

18. When pressed by the Court, counsel accepted that a declaration in the nature of that sought in Prayer 3 would be adequate for the Secretary’s purposes.

The relevant statutory provisions

The Mental Health Act 2007 (NSW) (hereinafter “the Act”)

19. The long title of the Act is:

“An Act to make provision with respect to the care, treatment and control of mentally ill and mentally disordered persons and other matters relating to mental health; and for other purposes.”

20. The provisions of the Act are complex and the drafting is, at times, awkward. The following summary extracts only what is relevant to the present proceeding. It does not purport to be, and should not be taken as, a complete or comprehensive (other than as applicable to this case) statement of the provisions of the Act. By way of illustration, the Act recognises two classes of persons who might be subject to orders of the Tribunal – “mentally ill persons” and “mentally disordered persons”. This proceeding is concerned only with the powers of the Tribunal with respect to “mentally ill persons”. In the interests of clarity some provisions relating to “mentally disordered persons” have been omitted.

21. The Act is divided into 9 Chapters, of which Chs 3 and 4 are material (Ch 1 deals with “Preliminary” matters; Ch 2 deals with “Voluntary admission to facilities”, and is not presently relevant). Chapter 3 deals with “Involuntary admission and treatment in and outside facilities”. Part 1 of Ch 3 (ss 12-16) deals with “Requirements for involuntary admission, detention and treatment”; Pt 2 (ss 17- 49) deals with “Involuntary detention and treatment in mental health facilities”. Chapter 4 deals with “Care and treatment”. Part 1 of Ch 4 (ss 68-81) deals with “Rights of patients or detained persons, designated carers and principal care providers”; Pt 2 (ss 82–97) deals with “Mental health treatments”; Pt 3 (ss 98-104) deals with “Other medical treatments”. Chapter 5 (of which only s 106 and s 109 are relevant) deals with “Administration”.

22. The objects of the Act are stated in s 3 and include, relevantly:

“(a)   to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill … and

(b)   to facilitate the care and treatment of those persons through community care facilities, and

...

(d)   while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others …”

23. What may be termed the underlying philosophy of the Act is to be found in s 12, subss (1) and (2) of which provide:

“12   General restrictions on detention of persons

(1)    A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that—

(a)     the person is a mentally ill person or a mentally disordered person, and

(b)     no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(2)     If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person.”

24. In s 4 “involuntary patient” is defined as:

“(a)   a person who is ordered to be detained as an involuntary patient after a mental health inquiry, or otherwise by the Tribunal, or

(b)   …

(c)   a correctional patient who is re-classified as an involuntary patient under section 65 of the [Forensic Provisions Act].”

25. Also in s 4, adopting the definitions in the Forensic Provisions Act (at ss 41-42), a “correctional patient” is defined as a person (other than a forensic patient) who has been transferred from a correctional centre to a mental health facility while serving a sentence of imprisonment, or while on remand, and who has not ceased to be a correctional patient under s 64 or s 65. A “forensic patient” is, inter alia, a person who has been detained under the provisions of the Forensic Provisions Act. For present purposes it is sufficient to say that the Forensic Provisions Act provides for persons charged with criminal offences who are afftected by mental illness, and who are, or may be, unfit to be tried.

26. “Mental illness” is defined in s 4 of the Act as:

“a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence of any one or more of the following symptoms:
[Five symptoms, which are unnecessary here to repeat, are itemised].

27. “Mentally ill person” is defined in s 14(1) (in Ch 3, Pt 1), which provides:

“A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary–

(a)   for the person’s own protection from serious harm, or

(b)   for the protection of others from serious harm.”

28. By s 13 a person is a mentally ill person for the purpose of involuntary admission to a mental health facility or detention in a facility under the Act or determining whether the person should be detained or continue to be detained involuntarily in a mental health facility if and only if the person satisfies the relevant criteria (relevantly the criteria stated in s 14).

29. “Mental health facility” is defined in s 4 to mean a “declared mental health facility” or a “private mental health facility”, but is not otherwise defined. “Health facility” is not defined. By s 109(1)(a) the Secretary may, by order published in the NSW Government Gazette, declare any premises (of the kinds identified in subs (3)) to be a “declared mental health facility”; by subs (2) an order made under subs (1) may:

“(a)   designate a declared mental health facility as a facility of a specified class,

(b)   designate the purposes for which a mental health facility of a specified class may be used,

(c)    impose restrictions on the use of a mental health facility for specified purposes,

(d)    impose any other conditions in relation to the operation of the facility as a mental health facility.”

(The Secretary has made an order under subs (2)(a), to which reference will be made below, declaring the Forensic Hospital to be a declared mental health facility.)

30. Section 18(1) states a number of circumstances in which a person may be detained in a declared mental health facility. Those circumstances may be summarised as:

1. on a certificate issued by a medical practitioner or accredited person (s 19);

2. after being taken to the facility by an ambulance officer who believes on reasonable grounds that the person appears to be mentally ill and that it would be beneficial to the person’s welfare to be dealt with in accordance with the Act (s 20);

3. after being apprehended and taken to the facility by a police officer if the person appears to be mentally ill or mentally disturbed and the police officer believes on reasonable grounds (a) that the person is committing or has recently committed an offence, has recently attempted to kill himself or herself, or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person and (b) that it would be beneficial to the person’s welfare to be dealt with in accordance with the Act rather than otherwise in accordance with law (s 22);

4. in accordance with s 19 (see (i) above), after examination or observation by a medical practitioner or accredited person authorised by order of a Magistrate or authorised officer (s 23);

5. by order of a Magistrate or bail officer pursuant to s 33 of the Forensic Provisions Act (s 24);

6. after transfer from another health facility (s 25);

7. on written request to an authorised officer by a designated carer, principal care provider or relative or friend (s 26).

   31. In the order designating the Forensic Hospital as a declared mental health facility, the Secretary also declared (pursuant to s 109(2)(c)) that ss 18, 19, 20, 22, 24, 25 and 26 shall not apply to the Forensic Hospital. Accordingly, admission to and detention in the Forensic Hospital is limited to the circumstances stated in s 23, that is, on a certificate issued by a duly authorised medical practitioner or accredited person, or on transfer, pursuant to s 80, from another mental health facility.

   32. Section 27 specifies steps that must be taken in relation to a person detained in a mental health facility. Put briefly, the steps involve examination by an authorised medical officer and a psychiatrist, with stated consequences dependent upon the opinion formed by those persons. In summary, step 4 requires that the person, if found to be mentally ill, be brought before the Tribunal as soon as practicable after admission. The person then becomes “an assessable person”. (If not found to be mentally ill, the person is not to be further detained.)

   33. By s 34 the Tribunal must hold an inquiry about an assessable person. The purpose of the inquiry is, by s 35(1), to determine whether or not, on the balance of probabilities, the person is a mentally ill person. If not so satisfied, by subs (3) the Tribunal must order that the person be discharged from the mental health facility. If so satisfied, by subs (5) of s 35, the Tribunal may make any of three specified orders. Those orders include:

   “(c)   an order that the person be detained in or admitted to and detained in a specified mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Tribunal is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection.”

   34. By s 37 the Tribunal is required to review the cases of involuntary patients at specified intervals. The purpose of the reviews is stated in s 38, which (relevantly) provides:

   “38   Purpose and findings of reviews of involuntary patients

   (1)    The Tribunal is, on a review of an involuntary patient, to determine whether the patient is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.

   (2)   For that purpose, the Tribunal is to do the following—

   (a)   consider any information before it,

   (b)     inquire about the administration of any medication to the patient and take account of its effect on the patient’s ability to communicate.

   (3)   If the Tribunal determines that the patient is not a mentally ill person, the patient must be discharged from the mental health facility in which the patient is detained.

   (4)   If the Tribunal determines that the patient is a mentally ill person and that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient, the Tribunal must make an order that the patient continue to be detained as an involuntary patient in a mental health facility for further observation or treatment, or both.

   (5)    In any other case that the Tribunal determines that a patient is a mentally ill person, it must make an order that the patient be discharged from the mental health facility in which the patient is detained and may make any of the following orders—

   (a)     an order that the patient be discharged into the care of a designated carer or the principal care provider of the person,

   (b)     a community treatment order.”

It is the scope of subs (4) that is in issue in the present proceeding.

35. Section 68 (in Pt 1 of Ch 4 – “Rights of patients or detained persons [and others]”) states 13 “Principles for care and treatment” that are, as far as practicable, to be given effect to with respect to the care and treatment of people with mental illness or mental disorder. They include:

“(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.”

36. By s 80(1) an involuntary patient detained in a mental health facility may be transferred from that mental health facility to another mental health facility or another health facility. By subs (4) of s 80:

“A transfer under this section is to be done in accordance with an arrangement between medical officers of each facility or an order in writing by the Secretary.”

37. By s 84 an authorised medical officer of a mental health facility may, subject to the Act and the Forensic Provisions Act, give, or authorise the giving of, any treatment (including any medication) the officer thinks fit to an involuntary patient or an assessable person detained in the facility in accordance with either Act.

The Tribunal’s Reasons

38. The essential reasons given by the Tribunal for the interpretation it placed on s 38(4) (see [16] above) may be found in a few key paragraphs of the Reasons for Decision. Before coming to those it may be noted that the Tribunal said:

“51.   It is self-evident from the structure of the Act that the responsibility for determining and administering appropriate care and treatment lies with the treating teams at the mental health facilities. Accordingly, those matters are not usually within the purview of the Tribunal, the situation which in any event is borne out by common sense and practicalities: notwithstanding the expertise of the psychiatrist and allied health members of the Tribunal, decisions as to the appropriate treatment can only properly be made by those fully informed of the patient’s circumstances and with the continuous experience of contact with the patient. Notwithstanding the expertise of members of the Tribunal, it is neither correct nor appropriate that a reviewing panel without the above knowledge and experience, should dictate the precise care and treatment which should be administered to the patient.

…

53. As a matter of principle and practicality, the judgments as to the appropriate mental health facility and the availability of places (i.e whether places are reasonably available) are best made by the Secretary of Health or by her delegated authorised medical officers. So much is confirmed by the terms of section 84 which reposes in the authorised medical officer, the authority to give any treatment (including any medication) that the officer thinks fit to an involuntary patient – see also MHRT Guideline: The role of the Mental Health Tribunal in relation to treatment. Guideline 7 reinforces the statutory mandate of the Tribunal to ensure that ‘a consumer receives safe and effective treatment, given all the circumstances’ and Guideline 8 states that the Tribunal should not ‘try to direct or dictate treatment’.” (italics in original)

39. The Tribunal (at [56]) noted the “entire and overwhelming medical opinion” that W’s detention at the Forensic Hospital is not the least restrictive form of care and treatment. (That terminology was drawn from par (a) of the “Principles for care and treatment” stated in s 68, set out above at [35].)

40. The Tribunal considered, by reference to s 35(5)(c) (see [33] above), that it was plain that it is given the power to order the admission and detention of a mentally ill person in a “specified mental health facility” (at [47]). The Tribunal stated that the questions that arise under s 38(4) are:

“(1)   is the person mentally ill?

(2)   what is the nature of the care, in relation to the restrictions it imposes, its safety, effectiveness and/or appropriateness that the person is currently receiving?

(3)   if the nature of the current care (in the way identified above) of the person is not appropriate, what is the nature of the care in those respects, that is reasonably available? And

(4)   if the care under consideration meets the statutory criteria, the Tribunal is obliged to make an order that [the] patient ‘continue to be detained in a mental health facility’.” (at [57])

41. It considered that the exercise required:

“58.   … a consideration of the restrictions imposed by the person’s current placement in the mental health facility and whether that placement constitutes the least restrictive kind of care. If the evidence before the Tribunal discloses that the current placement is not the least restrictive appropriate care, the Tribunal should receive and must consider alternative placements and make an adjudication about the appropriateness of the restrictions in the alternative placements.”

42. The Tribunal considered that the use of the definite article (“the mental health facility”) in subss (3) and (5) of s 38, compared with the indefinite article (“a mental health facility”) in subs (4), was significant and indicated that the legislature envisaged that the Tribunal might order that an involuntary patient be detained in a mental health facility other than the one in which, at the time of review, he or she was being detained (at [60]). It said that if (as was contended by the Secretary) the focus of subs (4) was on “the critical question of liberty: whether a patient [is] to be detained or not”, that intention could have been more clearly achieved by the use of the definite article in subs (4).

43. The Tribunal said that there was “no bright line between directing treatment and reviewing treatment in all cases” (at [55]) and that:

“61.   … the subject matter of the order for detention is broadened by the language ‘for further observation or treatment, or both’.”

and that those words:

“… clearly import that the Tribunal can properly have some input into the issue of ‘observation or treatment, or both’ …”

44. It rejected (at [63]) an argument advanced on behalf of the Secretary that the express power of transfer contained in s 80 militates against any power in the Tribunal pursuant to s 38(4) to determine the mental health facility in which any involuntary patient is to be detained, saying that the system could work coherently with a power able to be exercised by two repositories rather than one. (In fact, s 80 already expressly provides for two repositories of the transfer power – the medical officers of the facilities, and the Secretary.)

45. The Tribunal concluded:

“65. … As the above analysis demonstrates, a reading of [s 38(4)] in the context of the other subsections in s 38, demonstrates that the Tribunal does have an implied power to order the transfer of a patient from one level of security facility to a lesser level of security facility, the precise facility being a matter for the treating team and the facility in consideration.”

The Secretary’s submissions

46. The Secretary’s principal contention was, simply, that the text of s 38 does not support the existence of a power to make an order of the kind the Tribunal proposes to make.

47. It was contended that the Tribunal’s “primary decision-making function” (in this context) derives from s 38(1) and is “to determine whether the patient is a mentally ill person for whom no care (other than care in a mental health facility) is appropriate and reasonably available”.

48. It was argued that the Tribunal was in error in contrasting the use of the definite article in subss (3) and (5) of s 38 and the indefinite article in subs (4) and relying on that language as support for the construction it gave to subs (4). On the contrary, it was argued, the use of the indefinite article in subs (4) preserves the power of the Secretary, under s 80, to make an order for transfer of an involuntary patient from one facility to another. To have used the definite article in subs (4) would be inconsistent with that power, and would require the involuntary patient to remain in the facility in which he or she was detained at the time of the review.

49. Attention was drawn to the language of s 38(1), and particularly, the words in parentheses. By s 38(1) the Tribunal is required to determine:

“… whether the patient is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.” (Italics added.)

The words in parentheses in subs (1) do not appear in subs (4) which requires the Tribunal to determine whether:

“… the patient is a mentally ill person and that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available …”

The Secretary’s submission was that the words “no other care of a less restrictive kind” in subs (4) should be read as “no other care of a less restrictive kind (other than care in a mental health facility”).

50. Attention was then drawn to s 38(2)(b) which requires the Tribunal, in making its determination under subs (1), to enquire about one (and one only) specific matter, that is, the administration of medication and any effect that has on the patient’s ability to communicate. (This submission appears to overlook subs (2)(a), which requires the Tribunal to consider “any information” before it.)

51. Attention was also drawn to ss 18-26, which state the circumstances in which a person may either be “taken to” or “taken to and detained in” a declared mental health facility. By way of example, by ss 20 and 22, ambulance and police officers are authorised to “take a person [of whom they hold the requisite belief] to a mental health facility” (following which the power to detain is to be found in s 18), while a certificate issued by a medical practitioner or accredited person permits the person to be “taken to and detained” in a declared mental health facility (ss 19 and 23). By s 23(5), a person who has been examined or observed on the authority of a Magistrate or authorised officer may be detained in accordance with s 19. (It was not explained how these provisions furthered the Secretary’s position. As will be shortly seen, these provisions played a part in the argument advanced on behalf of W, as pointing to a contrary construction.)

52. Reliance was placed by the Secretary on s 80 as “a significant interpretative factor” contra-indicating an implied power to make an order of the kind proposed. The express conferral of a transfer power on the Secretary, and alternatively on medical officers of the relevant facilities, it was argued, does not suggest a need to find an implied power conferred on the Tribunal.

53. Finally, it was argued on behalf of the Secretary that the Tribunal has only limited power in relation to detention of involuntary patients, by contrast with extensive powers in relation to treatment of patients in the community under, for example, Community Treatment Orders, and its significantly greater role in relation to forensic patients given by the Forensic Provisions Act.

W’s submissions

54. While counsel for W argued in support of an implied power to make an order going beyond a bare order that an involuntary patient be detained in “a mental health facility”, she did not argue in support of an order of the breadth proposed by the Tribunal. Rather, she propounded a more narrowly confined power, to order that W be detained in a mental health facility “less secure than the Forensic Hospital”, or “in an appropriate mental health facility for further observation and treatment”. (The second formulation clearly implies that the Forensic Hospital is not an “appropriate” mental health facility. There was evidence to support the proposition that the Forensic Hospital is not an appropriate facility for the care and treatment of W.)

55. The argument depended on distinguishing the Forensic Hospital as unique among mental health facilities, particularly in relation to security.

56. There was evidence that the Forensic Hospital is administered by the “Justice Health and the Forensic Mental Health Network” (“Justice Health”). An inference to that effect can be drawn from the stationery on which correspondence from the Forensic Hospital is written.

57. In evidence in this Court was a copy of a Security Conditions Protocol between the Director-General of the Department of Health (presumably the predecessor of the Secretary) and the Commissioner of Corrective Services in relation to forensic patients and correctional patients. In definitions in the Protocol the Forensic Hospital is said to be:

“a new purpose-built high security psychiatric hospital that is administered by Justice Health. It is a declared mental health facility under s 109 of the Mental Health Act 2007 and is located outside the Long Bay prison complex.”

58. Also in evidence was a Justice Health Policy Document which set out:

“… directions on planning and applications for ground access and outside leave for adult and adolescent civil, correctional and forensic patients detained in The Forensic Hospital and the use of the Security Category and Leave Entitlement (SCALE).”

59. A “civil patient” is defined in the Policy as:

“... an involuntary patient under the Mental Health Act 2007 who is not also a forensic patient”

60. What is important, on W’s argument, is that the conditions allowing “ground access” or leave from the Forensic Hospital appear to be restrictive. (There is no evidence indicating the conditions of “ground access” or leave in other mental health facilities. It may be accepted, however, that conditions in the Forensic Hospital are, and are intended to be, restrictive).

61. On that basis it was argued on behalf of W that the Forensic Hospital falls into a different category from other mental health facilities. That may also be seen from the order made by the Secretary under s 109(2)(c) of the Act, declaring that ss 18, 19, 20, 22, 24, 25 and 26 shall not apply to the Forensic Hospital. As mentioned above, the effect of the exclusion of those provisions is that the Forensic Hospital is not a mental health facility to which resort may be had by ambulance or police officers, or to which involuntary patients may be transferred from another health facility, or on written request by an authorised medical officer, designated carer, or on a certificate given by a medical practitioner or accredited person. Access to the Forensic Hospital is limited to the circumstances stated in s 23, that is, after an order for examination and an examination and observation by a medical practitioner or accredited person, where a certificate under s 19 has been issued. The exclusions, it was argued on behalf of W, indicate clearly that the Forensic Hospital is a mental health facility in a different category and of a different class from other mental health facilities and is unique.

60. It was, finally, argued that to imply a power of the kind contemplated by the Tribunal would promote the objects of the Act and that:

“53   It would be inconsistent with its protective function for the Tribunal to continue the status quo in a case where the evidence indicates that care of a less restrictive kind is appropriate and available.”

Determination

63. In my opinion the Secretary’s submissions should be accepted. The issue, as stated at [3] above, is purely one of statutory construction. It has repeatedly been emphasised that the starting point in questions of statutory construction is the text of the provision or provisions in question: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106 at [32] ff, [124]. The text, however, is to be considered in its context, including the surrounding provisions of the legislation in which the provision in question appears.

64. The first point to make, and it can be made with economy, is that there is nothing in the text of s 38(4) itself that lends any aid to the Tribunal’s construction. Section 38(4) calls for determination of two factual matters. The first is that the patient is a mentally ill person (within the meaning of s 14). The second is a composite, that no other care of a less restrictive kind, consistent with safe and effective care, is appropriate and reasonably available. “No other care of a less restrictive kind” is plainly intended to mean “no other care of a kind less restrictive than care in a mental health facility”. If those two factual matters are found, the Tribunal must make an order that the patient continue to be detained in a mental health facility for further observation or treatment or both.

65. There is nothing in the language of subs (4) that suggests that the Tribunal may go further and direct the nature of the mental health facility in which the patient is to be detained. The role of the Tribunal is to determine:

1. whether the involuntary patient is a mentally ill person; and if so

2. whether the patient is to be detained in a mental health facility.

   66. Subsection (4) of s 38 should not be construed in isolation from the other subsections, nor in isolation from the Act as a whole: Attorney General for New South Wales v Melco Resorts and Entertainment Limited [2020] NSWCA 40 at [82].

   67. Contrasting the use of the indefinite article in subs (4) with the use of the definite article in subss (3) and (5) does not avail. In the case of those two subsections, the reference is to “the mental health facility in which the patient is detained”. The definite article is plainly appropriate in that context. There is only one mental health facility in which the patient is detained at the time of the Tribunal’s review. An order, as the Tribunal suggested would achieve the intention of subs (4), that the patient continue to be detained in “the mental health facility in which the patient is detained” would be inconsistent with the power in s 80 to transfer patients between facilities.

   68. The construction proposed is not available on the plain text of s 38(4). It is then necessary to consider whether there is anything in the context of the Act that supports other than a literal interpretation of subs (4).

   69. Questions as to the location of the detention, the place in which the involuntary patient is to be detained, and the level of security to which the patient is to be subject are administrative matters to be made by health professionals and lie in the province of those who administer the facilities. If that is not otherwise clear, s 80 makes it so.

   70. The power given in s 35(5)(c) to order (on the first inquiry) that the person be detained in a specified mental health facility for further observation or treatment or both does not assist the Tribunal’s construction. An order made under that power is limited to a period of three months, and is overtaken by subsequent periodic reviews as required by s 37. The omission of the word “specified” from s 38(4) strongly indicates that it was not intended that the Tribunal would have a role in the selection or identification of the facility in which any involuntary patient is to be detained.

   71. Not only is there nothing in s 38(4) that expressly (or implicitly) admits of an order by the Tribunal specifying the nature (or status) of the mental health facility in which the involuntary patient is to be detained, the proposed interpretation involves the introduction of words and concepts that are not present in the text of the provision. The Tribunal proposes that its power extends to making an order as to the level of security applicable in the mental health facility in which the involuntary patient is to be detained. Such a notion is entirely absent from the language of subs (4). Further, it is imprecise and would potentially give rise to real issues of interpretation. There was no evidence that there is any classification of security levels in mental health facilities. Just how such an order would be implemented or enforced was not explained.

   72. It was no doubt in recognition of these considerations that counsel for W urged a strictly limited application of the proposed power, confined, in effect, to an order that W be detained otherwise than in the Forensic Hospital. That does not surmount the obstacles to the interpretation outlined above. The construction given to s 38(4) by the Tribunal cannot be supported.

   73. I mentioned at the outset of these reasons that an issue had been raised concerning the standing of the Secretary to bring the proceedings. During the course of argument counsel for W accepted that that issue stood or fell on the substantive issue concerning the construction of s 38(4). She accepted that, if the Tribunal’s construction of the subsection were found to be in error, it was clear that it proposed to make an order that would be beyond its jurisdiction, and that the Secretary was the obvious and appropriate person to initiate proceedings that would prevent the making of such an order.

   74. As indicated, in my opinion the Secretary’s submissions should be accepted. The Tribunal does not have jurisdiction under s 38(4) to make an order of the kind proposed. In my opinion this Court should make a declaration in terms of prayer 3 of the summons of 17 July 2020. I propose that this Court make a declaration in the following terms:

   “Declare that the Mental Health Review Tribunal does not have power in a review under s 38(4) of the Mental Health Act 2007 (NSW) to order the transfer of an involuntary patient from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility.”

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Decision last updated: 09 September 2020