Secretary, New South Wales Ministry of Health v W

The Secretary of the New South Wales Ministry of Health sought a declaration concerning the powers of the Mental Health Review Tribunal. The dispute centred on whether the Tribunal, in conducting a review under section 38(4) of the *Mental Health Act 2007* (NSW), possessed the authority to order the transfer of an involuntary patient from one mental health facility to another, particularly where such a transfer would involve moving a patient from a higher to a lower level of security. The matter was heard by Macfarlan and Meagher JJA, and Simpson AJA in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was the proper construction of section 38(4) of the *Mental Health Act 2007* (NSW). Specifically, the Court was required to determine whether the statutory language conferred upon the Mental Health Review Tribunal the power to direct the physical relocation of an involuntary patient between different mental health facilities, and whether this power extended to authorising a change in the security classification of the facility to which the patient was transferred.

The Court's reasoning focused on a close examination of the text of section 38(4) and its surrounding provisions within the *Mental Health Act 2007*. The judges concluded that the section, when read in its entirety and in context, did not grant the Tribunal the power to make orders for the transfer of patients between facilities. The Court held that the Tribunal's powers under section 38(4) were limited to making recommendations or decisions regarding the patient's treatment, management, and detention, but did not extend to directing the physical movement of the patient from one institution to another, irrespective of the security level involved.

The Court of Appeal declared that the Mental Health Review Tribunal does not have the power, in a review conducted under section 38(4) of the *Mental Health Act 2007* (NSW), to order the transfer of an involuntary patient from one mental health facility to another, whether generally or to a facility with a lesser level of security.