A (by his tutor Brett Collins) v Mental Health Review Tribunal - [2014] NSWSC 31 - NSWSC 2013 case summary — Zoe

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A (by his tutor Brett Collins) v Mental Health Review Tribunal

[2014] NSWSC 31

Supreme Court of NSW|2013-12-12|Before: Lindsay J, Adam P

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Source facts

Court

Supreme Court of NSW

Decision date

2013-12-12

Before

Lindsay J, Adam P

Catchwords

31 DLR (4th) 1 at 14-15 and 17
410, 426, 427 and 437
31 DLR (4th) 1 at 16, 28, 29 and 36 Re Refugee Tribunal
Ex parte AALA (2000) 204 CLR 82 at 141 [163] Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552

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Original judgment source is linked above.

Catchwords

31 DLR (4th) 1 at 14-15 and 17410, 426, 427 and 43731 DLR (4th) 1 at 16, 28, 29 and 36 Re Refugee TribunalEx parte AALA (2000) 204 CLR 82 at 141 [163] Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552

Judgment (15 paragraphs)

[1]

3 NSLR 251, 269 [92] Re Eve [1986] 2 SCR 388 at 408 and 411; 31 DLR (4th) 1 at 14-15 and 17; 410, 426, 427 and 437; 31 DLR (4th) 1 at 16, 28, 29 and 36 Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 82 at 141 [163] Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552; Christianson v Christianson [1999] QCA 241 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40] Tasty Chicks Pty Limited v Commissioner of State Revenue (NSW) (2011) 245 CLR 446 at 453 [16], Ward v Williams (1955) 92 CLR 496 at 505-506 Warren v Coombes (1979) 142 CLR 531 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505 Texts Cited: A Barak, Purposive Interpretation in Law (Princeton UP, 2005) HS Theobald, The law relating to Lunacy (1924) p 382 JH McClemens and JM Bennett, "Historical Notes on the Law of Mental Illness in NSW" (1962) 4 Sydney Law Review 51 at 53 M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013), chapter 4 M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013), para [4.130] M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013) para [4.130] M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, Sydney, 2012), pp 57-58 Category: Principal judgment Parties: A (plaintiff) Mental Health Review Tribunal (first defendant) Justice Health & Forensic Mental Health Network (second defendant) Representation: Counsel: S Fraser (plaintiff) P Herzfeld (defendant) Solicitors: O'Briens Solicitors (plaintiff) The Crown Solicitor (defendant) File Number(s): 2013/0288415

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INTRODUCTION 1These proceedings were heard on 12 December 2013 and dismissed by an order made on 17 January 2014. Upon dismissal of the proceedings I delivered, orally, an outline of my reasons, reserving until now my full Reasons for Judgment. 2Those outline reasons were subsequently reduced to writing, and provided to the parties, in aid of early preparations for a forthcoming periodic review of the plaintiff's case, by the Mental Health Review Tribunal ('the Tribunal"), under s 46 of the Mental Health (Forensic Provisions) Act 1990 NSW. They are published, generally, today as A (by his Tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30. 3These, the foreshadowed full Reasons for Judgment are published as "No 4" in a series. 4The parties have a history of engagement in litigation. In earlier proceedings Justice Johnson published a judgment styled, A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 (26 November 2010), and in other proceedings Justice Adams published a judgment styled, A v Mental Health Review Tribunal [2012] NSWSC 293 (2 April 2012). 5In each case, "A" is the plaintiff's pseudonym. Pseudonyms are customarily deployed by the Court in appeals from the Tribunal in conformity with s 162(1) of the Mental Health Act 2007 NSW. That provision provides that "[a] person must not, except with the consent of the Tribunal, publish or broadcast the name of any person... to whom a matter before the Tribunal relates or, ... who appears as a witness before the Tribunal in any proceedings, or ... who is mentioned or otherwise involved in any proceedings under [the Mental Health Act or the Mental Health (Forensic Provisions) Act] whether before or after the hearing is completed." 6In Collins v Attorney General of NSW [2013] NSWCA 2008 the Court of Appeal dismissed an application by the plaintiff's tutor for an extension of time within which to apply for leave to appeal against a costs order made against him personally in the 2010 proceedings. 7The current judgments, in these proceedings, are numbered "3" and "4" in deference to those earlier judgments, each of which contains an exposition of the plaintiff's personal history and his engagement with the NSW mental health system. 8As a "forensic patient" (within the meaning of s 42 of the Mental Health (Forensic Provisions) Act) the plaintiff (by Mr Collins acting as his tutor pursuant to Part 7 Division 4 of the Uniform Civil Procedure Rules 2005 NSW) challenges, in these proceedings, a determination made (pursuant to s 47(1)(a) of that Act) by the Tribunal, a statutory tribunal constituted under Chapter 6 of the Mental Health Act. 9The plaintiff's tutor is his "primary carer" within the meaning of s 71 of the Mental Health Act. Although the evidence before the Court is silent as to how he comes to be the plaintiff's primary carer, Mr Collins appears to have the plaintiff's nomination as primary carer (pursuant to s 72 of the Mental Health Ac) as a carer, or close friend, of the plaintiff. They evidently share an interest in an organisation called "Justice Action". 10An objective of Justice Action is to raise awareness of contentious issues in the legal system including, in particular, those that concern prisons, prisoners and mental health: A v Mental Health Review Tribunal [2012] NSWSC 293 at [4]. 11By an order made by the Tribunal on 27 August 2009 pursuant to s 47(1) of the Mental Health (Forensic Provisions) Act, the plaintiff is currently, as he has been since that date, "detained in the Forensic Hospital [at Long Bay] to receive care and treatment". 12The Tribunal, named as the first defendant in the proceedings, has filed a submitting appearance. 13The second defendant, known colloquially as "Justice Health" but more fully named "Justice Health and Forensic Mental Health Network", is a "specialty network governed corporation" constituted by s 41 of the Health Services Act 1997 NSW. 14All clinical services in the Long Bay Forensic Hospital are provided by Justice Health. 15Insofar as the plaintiff's challenge to the decision of the Tribunal may need a contradictor, Justice Health has performed that role. 16It has done so subject to an express reservation (which I accept as appropriate) that it does not perceive itself to be opposed to the plaintiff in any sense but, rather, obliged to assist the Court in moving towards a proper, and fair, determination of the proceedings. 17In other appeals from the Tribunal the Attorney-General of NSW has been joined in the proceedings for the express purpose of serving as a contradictor. 18As Justice Health comes within the purview of the Minister for Health, and the Minister has substantial rights of appeal under the provision (s 77A of the Mental Health (Forensic Provisions) Act) pursuant to which the plaintiff challenges the Tribunal's determination in the present proceedings, it is an appropriate contradictor. 19The determination of the Tribunal under challenge was made on 12 September 2013. It is supported by Reasons for Decision dated 1 October 2013. Paraphrasing s 47(1)(a) of the Mental Health (Forensic Provisions) Act, it relates to the plaintiff's "continued detention, care or treatment" in a forensic hospital. 20The determination made by the Tribunal was that there should be no variation to the plaintiff's care, treatment and detention notwithstanding an application made to the Tribunal, by him, that it order that the administration of medication to him against his will be prohibited. 21A treating doctor of the plaintiff (a psychiatrist and "authorised medical officer" within the meaning of s 4(1) of the Mental Health Act) advised the Tribunal that, subject to any order that might be made by the Tribunal, the team of doctors treating the plaintiff proposed to recommence their treatment of him by long-acting injectable medication ("depot injection") for the delivery of anti-psychotic drugs. 22Over his objection the plaintiff had been subjected to that type of treatment for several years, following which he had been administered medication orally without resort to injections. 23Difficulties experienced by the plaintiff's treating doctors in the administration of medication orally, including doubts about whether he was in fact ingesting it, led to the doctors' proposal for recommencement of injections. 24Those doctors are authorised by s 84 (read with s 82) of the Mental Health Act to treat the plaintiff as proposed, subject to any order that the Tribunal or the Court might make. 25Section 84 (entitled "Treatment may be given to patients") provides that "[an] authorised medical officer of a mental health facility may, subject to [the Mental Health Act and the Mental Health (Forensic Provisions) Act], give, or authorise the giving of, any treatment (including any medication) the officer thinks fit to an involuntary patient... detained in the facility in accordance with [either of the two named Acts]." 26Section 82 includes a forensic patient in the definition of "involuntary patient". 27The statutory protections against abuse of the authority conferred by s 84 include (in s 85 of the Mental Health Act) a proscription, with a penalty, on any medical practitioner administering, causing to be administered or knowingly permitting the administration of a drug (in relation to any mental illness or mental condition) "in a dosage that, having regard to professional standards, is excessive or inappropriate". 28The issue about whether treatment of the plaintiff by depot injection should recommence was put to the Tribunal for determination, after a formal hearing, on the conduct by the Tribunal of its 21st periodic review of the plaintiff's case under ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act, via a formal application made by the plaintiff to the Tribunal for an order that his treatment and care not include depot injections. 29In A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [26] (3)(d) and [68]-[71] the Attorney-General (then fulfilling the role of the plaintiff's contradictor), and implicitly the Court, accepted that, as a matter of jurisdiction, it was open to the Tribunal to make such an order under s 47(1)(a) of the Mental Health (Forensic Provisions) Act. I agree. 30Although the determination made by the Tribunal took the form of a decision that there should be no variation of the plaintiff's care, treatment and detention, and that the order of 27 August 2009 should remain in force without variation, it was, in substance, a determination that the plaintiff's application for a prohibition order be dismissed. 31The plaintiff challenges the Tribunal's determination by way of an application (in proceedings commenced by summons, subsequently amended) for leave to appeal to the Court, on a question of law, pursuant to s 77A(1) of the Mental Health (Forensic Provisions) Act. 32Section 77A(11) provides that "[if] a party has appealed under this section to the Court against a determination of the Tribunal, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or determination made in respect of the proceedings". 33In the current proceedings neither the Tribunal nor the Court has made an order under s 77A(11) for suspension of any order or determination of the Tribunal. 34The nature of the determination of the Tribunal under challenge does not lend itself to a s 77A(11) suspension order because it was, in substance, an order for dismissal of the plaintiff's application for variation of a continuing s 47(1) order that is not otherwise controversial. 35On 26 September 2013, on the application of the plaintiff, and with the consent of Justice Health, the Chief Judge in Equity granted an interlocutory injunction to prevent the forced administration of anti-psychotic medication via depot injection until determination of the plaintiff's amended summons. 36Prior to granting the injunction the Chief Judge sought from the plaintiff's solicitor, and obtained, an assurance that, during the currency of the injunction, the plaintiff would take his medication orally. 37Having regard to the nature of the injunction granted, and the medical condition of the plaintiff, no formal undertakings were sought or obtained from the plaintiff beyond that informal assurance. 38The jurisdiction to grant an interlocutory injunction of the type granted is incidental to the existence of a right of appeal to the Court. It derives from the inherent power of the Court, reinforced by the Supreme Court Act 1970 NSW, s 23, to do whatever may be necessary to prevent injustice occurring with respect to matters coming within its cognisance: Ex parte Farren; Re Austin (1960) 77 WN (NSW) 743 at 744-745; Dwyer v National Companies and Securities Commission (1988) 15 NSWLR 285 at 287B-D and 287G-288D; Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 at 676D-678B. 39The jurisdiction is undiminished by the fact that, as in these proceedings, any right of appeal is conditioned on a grant of leave to appeal. The Court is able (by the grant of an injunction, stay or other order as the nature of the case may require) to protect the integrity of the appeal process. 40In substance, the question sought to be raised by the plaintiff under s 77A is whether the Tribunal erred in acting upon a principle that "only in exceptional cases [of which this was not considered by the Tribunal to be one] would [it] step in and make orders as to the medication to be given or not given to a patient who is under the every-day care of a competent treating team [of doctors authorised by Justice Health]". 41As elaborated in submissions, the plaintiff contends that, in undertaking a "review of the case" of the plaintiff for the purpose of s 46(1) of the Mental Health (Forensic Provisions) Act as a preliminary to a consideration of whether to make an order under s 47(1) of the Act: (a)the Tribunal acted upon a presumption that it should make no order departing from, or interfering with, arrangements for the care or treatment of a forensic patient devised by treating doctors authorised by Justice Health (M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013), para [4.130]; Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 CLR 1 at 16 [39] - 17 [40]); and (b)the Tribunal thereby: (i)mis-stated the test it was required, by ss 46-47 of the Mental Health (Forensic Provisions) Act, read with ss 40 and 74 of the Act, to apply upon a consideration of the plaintiff's application; (ii)impermissibly delegated to the plaintiff's treating doctors decision-making about the plaintiff's continued detention, care or treatment; and (iii)adopted a test that was more restrictive of the plaintiff's rights than justified by any provision of the Act. 42Justice Health contends that: first, on a fair reading of its Reasons for Decision, the Tribunal cannot be said, in fact, to have acted on any presumption such as that alleged; secondly, the Tribunal did not, in any respect, err in law; and, thirdly, the weight to be given by the Tribunal to medical evidence before it, including evidence of a patient's treating doctors, is a matter for the Tribunal. 43Justice Health submits that the Court should order that the plaintiff be granted leave to appeal, limited to the question of law here identified, but the appeal should be dismissed. 44With the consent of both sides of the record, the plaintiff's application for leave to appeal and any appeal consequent upon a grant of leave were heard concurrently. 45The parties agreed that, if it were to conclude that the Tribunal erred in law, the Court should order that the Tribunal's determination be set aside and that the proceedings be remitted to the Tribunal for determination according to law. 46The parties also agreed that, whatever orders might be made in disposition of the proceedings, no orders as to costs were to be made.

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FACTUAL BACKGROUND 47The plaintiff's engagement with the NSW legal system commenced on 18 January 2002. On that date he set fire to premises where he worked, resulting in the death of a fellow employee and extensive damage to the premises. He was charged with the murder of the deceased, and with maliciously damaging property by fire with intent to endanger life. 48On 1 May 2003 a judge determined, pursuant to the Mental Health (Forensic Provisions) Act, that the plaintiff was unfit to be tried. Cf, R v Mailes (2001) 53 NSLR 251. 49In accordance with s 14 of the Act he was referred to the Tribunal. 50On 19 May 2003 the Tribunal determined, pursuant to s 16 of the Act, that, on the balance of probabilities, the plaintiff would not, during the period of 12 months after the finding of unfitness, become fit to be tried for the offences with which he was charged. 51On 8 July 2003 the Attorney-General directed that there be a "special hearing" (within the meaning of ss 4(1) and 19(2) of the Act) for the purpose of ensuring, despite the unfitness of the plaintiff to be tried in accordance with normal procedures, that he be acquitted unless it could be proved to the requisite criminal standard of proof that, on the limited evidence available, he had committed the offences charged against him or another offence available as an alternative to those charges. 52Except as provided by the Act, a special hearing is conducted as nearly as possible as if it were a trial of criminal proceedings: s 21. Unless an election is made for a special hearing to be determined by a jury, it is determined by a judge sitting alone: ss 21A-21B. In this case, it was determined by a jury. 53After a special hearing commencing on 3 March 2004, on 19 March 2004 a jury returned a verdict, that included, in relation to particular charges, a finding that the plaintiff was "not guilty on the ground of mental illness": s 22(1)(b). 54That verdict is taken, by virtue of s 22(2), to have been the equivalent for all purposes to a special verdict, on a trial by indictment, that an accused person is not guilty by reason of mental illness under s 38. 55To similar effect, s 25 provides that "a special verdict that [an] accused person is not guilty by reason of mental illness" carries a consequence that "the person is thereafter to be dealt with and an order may be made under [the Mental Health (Forensic Provisions) Act] in respect of the person as if [the special verdict had been returned] at a normal trial of criminal proceedings. 56Section 38(2) provides that "[if] a special verdict of not guilty by reason of mental illness is returned ... the Court may remand the person [the subject of the verdict] in custody until the making of an order under s 39 in respect to the person". 57Section 39 reads as follows: "39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order." 58Section 39 arises for consideration following an acquittal. Legally, the accused is not to blame for his or her actions and is not to be punished for them. The power to make an order under s 39 is protective (of the accused, others and the community generally), not punitive: Attorney-General of NSW v X [2013] NSWSC 1392 at [87]-[91], citing, inter alia, R v SE [2009] NSWSC 785 at [67]. 59By this route, the plaintiff engaged Part 5 (ss 40-76K) of the Mental Health (Forensic Provisions) Act, including the decision-making procedures for which ss 46-47 of the Act provide. 60On 19 March 2004, in accordance with s 39, a judge ordered that the plaintiff be detained at Ward D of the Long Bay Prison Hospital until released by due process of law. 61On 12 April 2007 the Court of Criminal Appeal dismissed his appeal from the orders made at the special hearing. 62On 23 March 2009 an executive order was made, pursuant to ss 76D-76E of the Mental Health (Forensic Provisions) Act, that he be transferred from the Long Bay Prison Hospital to the Forensic Hospital, a "mental health facility" for the purpose of the Act. The current order governing his detention was made by the Tribunal on 27 August 2009.

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THE CONSTITUTION OF THE MENTAL HEALTH REVIEW TRIBUNAL 63Constituted by s 140 (in ch 6) of the Mental Health Act, the Tribunal is a creature of statute, without inherent powers, but with, in addition to express powers, implied authority to uphold, protect and fulfil the functions conferred on it by statute: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 321G-322B. 64Section 140(2) of the Mental Health Act provides that the Tribunal has the functions conferred or imposed on it by or under that Act or any other law. 65Those functions include: (a)the conduct of reviews of the respective cases of forensic patients pursuant to Part 5 of the Mental Health (Forensic Provisions) Act. (b)consideration, under Part 4.1 of ch 4 (especially s 45) of the NSW Trustee and Guardian Act 2009 NSW, of whether a forensic patient is capable of managing his or her own affairs without the appointment of a financial manager (customarily, by operation of ss 46 and 52, the NSW Trustee). 66The legislation governing the Tribunal must be construed purposively to ensure that, so far as possible, its beneficial objects are achieved: Harry v Mental Health Review Tribunal at 33 NSWLR 321 E-F, 333 - D and 342 E-F. 67The Tribunal is both guided, and constrained, by various legislative statements of objects to be achieved, principles to be applied and factors to be taken into account, including: (a)in the Mental Health Act, ss 3, 68 and 105, read with s 195; (b)in the Mental Health (Forensic Provisions) Act, s 40 and 74; and (c)in the NSW Trustee and Guardian Act, s 39. 68Of these, the most prominent for present purposes are ss 68 of the Mental Health Act and ss 40 and 74 of the Mental Health (Forensic Provisions) Act. Those provisions were directly applicable to the Tribunal's consideration of the plaintiff's application for a prohibition order in the conduct of the s 46 review that gave rise to the current proceedings. 69It is those provisions to which the parties have given particular attention. It is those provisions that, here, attention must first be given.

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LEGISLATIVE OBJECTS, PRINCIPLES AND FACTORS 70Section 40 of the Mental Health (Forensic Provisions) Act provides that the objects of Part 5 of the Act are as follows: (a)to protect the safety of members of the public, (b)to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c)to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d)to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e)to give an opportunity for those persons to have access to appropriate care. 71A note to s 40 draws attention to s 68 of the Mental Health Act, which sets out general principles with respect to the treatment of all people with a mental illness or mental disorder. 72Section 68 is in the following terms: "68 Principles for care and treatment It 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, (d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others, (e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment, (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, (h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and plans for ongoing care, (i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand, (j) the role of carers for people with a mental illness or mental disorder and their rights to be kept informed should be given effect." 73In the context of these proceedings, those two sections (s 40 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act) must be read with s 74 of the Mental Health (Forensic Provisions) Act 1990. 74That section mandates matters required to be taken into account by the Tribunal when determining what order to make about a forensic patient under s 47. It is in the following terms: "74 Matters for consideration Without 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." 75Section 76B(1) of the Mental Health (Forensic Provisions) Act provides that "[to] avoid doubt, the principles set out in s 68 (Principles for care and treatment) of the Mental Health Act 2007 apply, subject to [the Mental Health (Forensic Provisions) Act] or any other Act or law, to the administration of [Part 5 of the Mental Health (Forensic Provisions) Act] with respect to forensic patients...." 76Section 76B(5) provides that s 195 of the Mental Health Act applies to the provisions of s 40 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act (as applied by s 76B(1) of the Mental Health (Forensic Provisions) Act). 77Section 195 of the Mental Health Act (entitled "Role of Objects Provisions") provides that the provisions of s 68 of that Act "are intended to give guidance in the administration of [the Mental Health Act] and do not create, or confer on any person, any right or entitlement enforceable at law." That declaration of intent applies equally to ss 3 and 105 of the Act, to which further reference will be made in due course.

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MENTAL HEALTH REVIEW TRIBUNAL "REVIEWS THE CASE" OF A "FORENSIC PATIENT" 78Within this framework, attention returns to ss 46 and 47 of the Mental Health (Forensic Provisions) Act. They are in the following terms: "46 Further reviews by Tribunal of forensic patients (1) The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time. (2) The Tribunal must review the case of a forensic patient if requested to do so by the Minister for Health, the Attorney General, the Minister for Justice, the Minister for Juvenile Justice, the Director-General or the medical superintendent of the mental health facility in which the patient is detained. (3) The Tribunal must review the case of each forensic patient who is subject to a community treatment order, and who is detained in a correctional centre, every 3 months. (4) The period within which a particular review under this section (other than a review of the case of a forensic patient who is subject to an extension order) must be held may, on the motion of the Tribunal or on the application of the patient or the primary carer of the patient, be extended by the Tribunal to a maximum of 12 months. (5) The Tribunal may grant an application to extend the review period if it is satisfied that: (a) there are reasonable grounds to grant the application, or (b) an earlier review is not required because: (i) there has been no change since the last review in the patient's condition, and (ii) there is no apparent need for any change in existing orders relating to the patient, and (iii) an earlier review may be detrimental to the condition of the patient. 47 Orders and recommendations on further Tribunal reviews (1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to: (a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or (b) the patient's release (either unconditionally or subject to conditions). (2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release. (2A) The Tribunal must not make an order as to the release, unconditionally, of a forensic patient who is subject to an extension order but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order. (3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act. (4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence. (5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person: (a) has become fit to be tried for an offence, or (b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence [Emphasis added]." 79The Mental Health (Forensic Provisions) Act contains no definition of the word "review", the term "review the case of a forensic patient" or derivatives of either expression. 80The word "review" has no settled pre-determined meaning; it takes its meaning from the context in which it appears: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261; Tasty Chicks Pty Limited v Commissioner of State Revenue (NSW) (2011) 245 CLR 446 at 450[5]. 81In the present context, the word "review" is not used in contra-distinction to the word "appeal", as often it is. 82Its use is, rather, closer to that of a synonym for the word "survey" and, placed within the expression "review the case of a forensic patient", it conveys the idea of a fresh (albeit perhaps, depending on prevailing circumstances, a limited rather than a general) consideration of the personal circumstances of a forensic patient. 83A review under s 46 of the Mental Health (Forensic Provisions) Act is for the purpose of consideration by the Tribunal of whether to make any (and, if so, what) orders under s 47 of the Act concerning, in the present proceedings, a forensic patient's detention, care or treatment: A v Mental Health Review Tribunal [2012] NSWSC 293 at [12]. 84The nature and scope of a particular s 46 review will depend on perceptions of the Tribunal, and others (including the forensic patient) then involved in the detention, care or treatment of the patient, about issues touching on the status or welfare of the patient. 85A s 46 review provides an occasion for the Tribunal to investigate a forensic patient's personal circumstances and, as the nature of the case may require, to supervise his or her "detention, care or treatment in a mental health facility". 86The review process is not adversarial but, as these proceedings illustrate, the Tribunal may invite debate in its identification, definition and solution of any problems that might be thrown up for consideration. In this sense only, the process is a hybrid, not simply investigative or adversarial in nature: In the matter of a Forensic Patient v Mental Health Review Tribunal and the Attorney-General (NSW) (Foster J, 17 July 1987, unrep), pp 11 and 13-14. A forensic patient the subject of a review may be (and is perhaps expected to be) an active participant in the process, not merely a subject of inquiry. 87The fact that a forensic patient may be a participant in the review process, and adopt an adversarial stance, does not render the true nature of the process adversarial. The public interest, protective and administrative aspects of the process, coupled with the incapacity of the patient, stand in the way of characterisation of a review as truly adversarial. 88No participant in a review bears an onus of proof of the type encountered in ordinary civil or criminal proceedings between parties of full capacity: M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013) para [4.130]. Cf, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 16 [39] - 17 [40]. 89There is no room for presumptions which may, unwittingly, serve as a surrogate for the imposition of an onus of proof as a gloss on the Tribunal's governing legislation. 90By its nature, an exercise of protective jurisdiction differs, for example, from an exercise of equity jurisdiction. Whereas "Chancery" practice is directed to litigation, protective jurisdiction is directed to administration: HS Theobald, The law relating to Lunacy (1924) p 382. Subject to the terms of the Tribunal's governing legislation, the same is true of the review process for which ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act provide. 91Nevertheless, operating within the terms of that legislation, it is incumbent on the Tribunal to remain conscious of the status and antecedents of a forensic patient. In assessing the current personal circumstances of a patient, the Tribunal can have regard to his or her history of engagement with the law and the Tribunal's accumulated store of knowledge about him or her. Although the issues identified for consideration in the course of a particular review may extend to any, and every, aspect of a patient's "case" they need not: Cf, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]. 92The provision in s 46 for regular, periodic reviews is consistent with the Tribunal focussing on particular aspects of a forensic patient's "case" in particular reviews, mindful always of a need to place them in a broader context. 93By virtue of s 73, the functions of the Tribunal under the Mental Health (Forensic Provisions) Act are exercised by the Forensic Division of the Tribunal. It comprises the President, or a Deputy President, of the Tribunal (effectively a judge or former judge of the Supreme Court, or the District Court of NSW, or an equivalent); a member who is a psychiatrist, a registered psychologist or other suitable expert in relation to a mental condition; and a member who has other suitable qualifications or experience. 94Section 76A(1) of the Act provides that "[for] the purposes of a review, the Tribunal may communicate with any persons, take any action and make any recommendations it thinks fit. [Emphasis added]" 95This provision supplements the provisions of Chapter 6 of the Mental Health Act 2007, Part 2 of which deals with procedures of the Tribunal. That Part applies, by s 149 of the Mental Health Act, to any proceedings of the Tribunal under the Mental Health (Forensic Provisions) Act. 96The procedures for which Chapter 6 Part 2 provides include the following: (a)Meetings of the Tribunal are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Mental Health Act, Mental Health (Forensic Provisions) Act, regulations and the proper consideration of the matters before the Tribunal permit: s 151(1). (b)In determining any matter relating, inter alia, to a forensic patient the Tribunal is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits: s 151(2). (c)Subject to Chapter 6 Part 2 and regulations made under the Mental Health Act, the procedure for the calling of, and for the conduct of business at, any meeting of the Tribunal is to be determined by the Tribunal: s 160(1). 97The current proceedings focus particularly on the Mental Health (Forensic Patients) Act, ss 46(1) and 47(1)(a). 98Key elements in those provisions are: (a)the expressions "review the case" and "forensic patient" in s 46(1); (b)the expression "continued detention, care or treatment" in s 47(1)(a); and (c)the word "may" in s 47(1). 99At a high level of abstraction the first two expressions, together, define the task of the Tribunal leading to the determination under challenge in these proceedings, and implicitly illustrate the nature of the Tribunal's jurisdiction. 100The word "may" serves as a connector between the first two expressions. The purpose of a "review" is for the Tribunal to decide whether to make any (and, if so, what) orders under s 47(1). 101As it was common ground in the Tribunal that the plaintiff's release from detention was neither sought nor appropriate, the present focus, within s 47(1), is and was at all material times on s 47(1)(a). 102Taking a narrow perspective, focussing on the terms of s 46(1) and s 47(1)(a) without exegesis, those provisions appear to confer on the Tribunal an unfettered discretion about whether to make any order at all. 103Read literally, s 74 could be construed as confined to a consideration of what order to make under s 47(1), not touching upon the threshold question of whether to make an order. Such a literal interpretation should be eschewed. Nevertheless, the implications of the word "may" need to be drawn out in order to determine the criteria to be applied by the Tribunal in deciding whether to make a s 47(1) order and, if so, the particular order to be made. 104The Interpretation Act 1987 NSW provides some assistance. Section 9(1) provides, inter alia, that in any Act of the NSW Parliament the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. Section 33 of the same Act provides, inter alia, that in the interpretation of an Act a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. Returning to s 9(2) we find that the word "shall", if used to impose a duty, indicates that the duty must be performed. 105Quite apart from ss 9 and 33, the temper of the times generally favours a purposive construction: eg, A Barak, Purposive Interpretation in Law (Princeton UP, 2005). 106In the context of s 47(1) the word "may" imports a discretionary value judgment, but not an unfettered discretion. 107Several points about the nature of that discretion are worthy of notice. 108First, the nature and purpose of a discretionary power may mandate that , if specified criteria are satisfied, the decision maker in which the power resides must exercise the discretion conferred upon it. In context, "may" can mean "must": Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222; Ward v Williams (1955) 92 CLR 496 at 505-506; Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 and 138-139. 109There may be reviews undertaken by the Tribunal in which the evidence before, or available to, the Tribunal compels a particular outcome because to proceed otherwise would be manifestly unreasonable, or otherwise to err; but, subject to that possibility, the discretion for which s 47(1)(a) provides is at large: "may" does not here mean "must". 110Secondly, where a legislative decision-making power provides no positive indication of the considerations by reference to which a determination is to be made under or by reference to that power, the general discretion ostensibly conferred on the decision-maker is confined only by the scope and purposes of the legislation governing the Tribunal's operations: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505 applied, inter alia, in O'Sullivan v Farrer (1989) 168 CLR 210 at 216, Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320 at 329 [13] and Hogan v Hinch (2011) 243 CLR 506 at 536 [31] and 548 [69]. 111That is not the position with s 47(1)(a) in the context of a general review under s 46(1). The Tribunal's decision-making under those sections is guided, at least, by the statement of objects enumerated in s 40 of the Mental Health (Forensic Provisions) Act and the statement of "principles for care and treatment" enumerated in s 68 of the Mental Health Act, as well as constrained by the matters to which (under s74 of the Mental Health (Forensic Provisions) Act) regard must be had by the Tribunal when determining what order to make about a forensic patient under s 47(1)(a). 112Nevertheless, a need to be mindful of the importance to the Tribunal of consulting the subject matter, scope and purpose of its governing legislation arises from: (a)the high level of abstraction of the objects, principles and factors identified in the purposive provisions affecting it; (b)the broad nature of a s 46 "review", incorporating a need to consult the availability of alternative arrangements for the care and treatment of a forensic patient; and (c)the need, in an appropriate case, to have regard to a range of purposive provisions, not limited to s 68 of the Mental Health Act and ss 70 and 74 of the Mental Health (Forensic Provisions) Act. 113To the extent that a decision may be characterised as extraneous to any objects Parliament could have had in view, a decision of the Tribunal will be open to challenge. 114Thirdly, the generality of the statements of objects, principles and factors made in the Tribunal's governing legislation reflects an intention on the part of Parliament to leave to the Tribunal, upon the conduct of a s 46 review, scope to give effect, by a process of reasoning applied to investigation of facts and due consideration to the legislation's purposive element, to its view of the justice of the particular case: Minister for Immigration and Citizenship v Li [2013] HCA 18; 86 ALJR 618 at [23], citing Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473. 115Fourthly, the justice of a particular case and, accordingly, the nature of a determination to be made by the Tribunal may take colour from the subject matter of the particular decision. For example, a decision that calls for consideration of a person's ongoing status as a "forensic patient" may need to be approached differently from a decision about management of the "care or treatment" of a person within the parameters of his or her status as a forensic patient. This is seen, explicitly, in provisions of the Mental Health (Forensic Provisions) Act that contemplate that a forensic patient may be released from detention or may have been unfit to be tried for an offence.

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General Indicators of Purposive Jurisdiction 116There is no shortage of indicators that the work of the Tribunal is governed by considerations of "purpose". 117That is so whether one defines that work in terms of function, power, authority or duty. 118The Mental Health (Forensic Provisions) Act includes, in s 3(3), an express statement that, in the Act, a reference to a function includes a reference to a power, authority and duty, and a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. 119There are at least six levels of indication that the work of the Tribunal is governed by "purpose". 120First there are express statutory provisions framed in terms of "purpose". The Mental Health (Forensic Provisions) Act, ss 40 and 74, read with the Mental Health Act, s 68 are the principal provisions; but, amongst others, the NSW Trustee and Guardianship Act, s 39 requires particular notice. 121Secondly, ss 46 and 47, and other legislative provisions that must be consulted on an exposition of them, use language that imports general law concepts (relating to the "inherent", protective jurisdiction of the Supreme Court) long viewed as purposive in character. 122Thirdly, there is the provision of a statutory appeal to the Supreme Court (via the Mental Health (Forensic Provisions) Act, s 77A) in terms which are both flexible and consistent with the breadth of the Court's inherent jurisdiction, preserved by the legislation governing the Tribunal. Decisions made by the Court in disposition of an appeal are bound to be influenced by the availability of the Court's inherent protective jurisdiction. 123Fourthly, allowance must be made for the nature of the social problems (focussing upon the detention, care and treatment of an indeterminate number, and variety, of individuals affected by mental illness) routinely required to be addressed by the Tribunal. 124Those problems fall to be determined against the background of the common law's entrenched concern for the protection of civil liberties, especially in relation to medical treatment. The norm is that a prerequisite to the medical treatment of an individual is a need for the individual's consent to that treatment: Rogers v Whitaker (1992) 175 CLR 479 at 489. 125Forced medical treatment is exceptional; but, subject to procedural safeguards, permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 323E, 322G-333F and 334B-335D. One of those recognised necessities is accommodated by the protective jurisdiction of the Court (historically, as a delegate of the Crown), in dealing with a person in need of protection, by requiring that any medical intervention be for the benefit, and in the best interests, of the protected person: E (Mrs) v Eve (better known as "Re Eve") [1986] 2 SCR 388 at 410-411, 425-427, 429-430 and 437; 31 DLR (4th) 1 at 16-17, 28-29, 31 and 36, approved in Marion's Case (Secretary, Department of Health and Community Services v JWB and SMB) (1992) 175 CLR 218 at 258-260 and followed in Christensen v Christensen (Queensland Court of Appeal, 2 July 1999) BC 9904473 at [18]-[19]. 126Fifthly, the constitution of the Tribunal, by its Forensic Division, when exercising functions under the Mental Health (Forensic Provisions) Act points to purpose in identification of the qualifications of members. Significance may attach to the character of the Tribunal as a specialist body upon consideration by the Court of a challenge to its determinations: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [56]-[59]; Attorney General of NSW v X [2013] NSWSC 1392 at [93]-[98]. 127Sixthly, the work undertaken by the Tribunal under ss 46-47 is predicated upon an antecedent legal determination that: (a) the person whose case is under review is, or may be, a danger to both self and others; (b) he or she is a person in need of protection; and (c) he or she is a person for whom detention, care and treatment by the State may reasonably be a necessity. 128The s 47(1) order made by the Tribunal on 27 August 2009 for the plaintiff to be detained in the Long Bay Forensic Hospital is itself expressed in purposive terms. The plaintiff is to be detained there "to receive care and treatment".

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The Statutory Principles, Objects and Factors 129In the context of a determination made under s 47(1) of the Mental Health (Forensic Provisions) Act, after a s 46(1) review, ss 40 and 74 of that Act and s 68 of the Mental Health Act must be read together. 130By virtue of ss 76B(1) and (5) of the Mental Health (Forensic Provisions) Act, and s 195 of the Mental Health Act, s 40 of the former Act and s 68 of the latter provide "guidance in the administration" of the Mental Health (Forensic Provisions) Act and "do not create, or confer on any person, any right or entitlement enforceable at law". 131Section 74 of the Mental Health (Forensic Provisions) Act is in a different category because: (a) its subject matter relates expressly to factors to be taken into account in decision making, rather than "objects" or "principles" in the nature of guidelines; (b) the "matters" identified in s 74 have a mandatory flavour because the section provides that the Tribunal "must" have regard to them; and (c) in an appropriate case, the obligation of the Tribunal to have regard to those matters might be enforceable by a grant of relief by the Court (pursuant to the Supreme Court Act 1970 NSW, ss 65 and 69) in the nature of relief historically available via the issue of a prerogative writ. 132Upon a closer consideration, each of s 40 and s 68 has separate work to do. 133Section 68 provides principles that "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" in the context of the Mental Health Act no less than in the context of the Mental Health (Forensic Provisions) Act. 134Those principles apply, for example, not only to the Tribunal in the performance of its work under Part 5 of the Mental Health (Forensic Provisions) Act, but also to the performance of work by the "authorised medical officers" (as defined by s 4(1) of the Mental Health Act) who constitute "the treating team" whose views about the care and treatment of the plaintiff were upheld by the Tribunal in the determination under challenge in these proceedings. 135Although protected from personal liability for any injury or damage caused by the performance of his or her functions in good faith (Mental Health Act, s 191), an authorised medical officer, and other persons employed at a mental health facility, are liable to criminal prosecution in the event that they "wilfully strike, wound, ill-treat or neglect a patient or person detained" at the facility: Mental Health Act, s 69. The principles for which s 68 of that Act, and the provisions of s 40 and 74 of the Mental Health (Forensic Provisions) Act, provide may inform an assessment of what constitutes ill treatment of a patient or detainee. 136The key to s 69 appears to be the word "wilfully", in combination with words that coalesce around the word "ill-treat", in the text of the section. "Ill-treat" is also the key word in the heading to the section: "Offence to ill-treat patients". 137The word "wilful" generally imports a state of mind that is either deliberate or recklessly indifferent vis á vis conduct having a particular purpose or effect: eg, Re Hodgekiss (1959) 62 SR (NSW) 340 at 352-354, citing In Re City Equitable Fire Insurance Co Limited [1925] 1 Ch 407 at 434. 138The concept of a patient being "ill treated" implicitly interrelates with other legislative provisions that require, or allow, a patient to be the subject of "care", "treatment", or "control". 139Section 68 of the Mental Health Act speaks of "care and treatment". Sections 40 and 74 of the Mental Health (Forensic Provisions) Act speak of "care, treatment [and/or] control". 140Section 40 of the Mental Health (Forensic Provisions) Act sits comfortably with s 68 of the Mental Health Act but, implicitly, involves a subtle shift in emphasis. That is seen in use of the word "control" in combination with the concept of "care and treatment" and in the express identification of the object of protecting the safety of members of the public as the first of five specified objects. 141A forensic patient is, by definition, a person who may be a danger to the public, if not to self. Section 43 of the Mental Health (Forensic Provisions) Act expressly identifies "criteria" referable to the release of a forensic patient from detention. It provides that the Tribunal must not make an order for release unless it is satisfied, on the evidence available to it, that: (a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release; and (b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care. A similar concern, for the protection of both a forensic patient and others from serious harm, is found in s 74(b). 142Taken together, ss 40 and 74 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act provide a list of topics which, depending upon the facts of the particular case, may provide what might loosely (albeit inaccurately) be described as a "check list" of topics to be consulted upon the conduct of a review under s 46(1), or upon the making of a determination under s 47(1)(a) of the Mental Health (Forensic Provisions) Act. 143The comparative significance of those topics, and the weight to be given to particular facts examined in the context of them, are likely to vary from case to case.

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A central informing idea 144The significance of the topics prescribed for particular attention in the context of a review governed by ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act cannot be determined by reference only to ss 40 and 74 of that Act and s 68 of the Mental Health Act. 145Implicit in those provisions, and in the legislation that governs the work of the Tribunal generally, is a central idea that operates as a working assumption upon which all else is founded. It informs the construction and operation of the Mental Health Act, the Mental Health (Forensic Provisions) Act and chapter 4 of the NSW Trustee and Guardian Act insofar as that legislation relates to the protection or care of a person who is, or may be, mentally incompetent, or more generally, incapable of managing his or her affairs. 146The foundational idea is that the protection and care to which such a person is, or may be, entitled is to be provided, and assessed, primarily by reference to the welfare of the person in need of protection: by reference, more particularly, to whether it is for the benefit, and in the best interests, of that person. 147It is a "working assumption" because, in a particular case, measures designed to promote the interests of a person in need of protection may need to accommodate a competing need for protection of others or the community generally. 148Sections 40 and 74 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act serve as more than a checklist of considerations relevant to the operation of ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act. 149They are: (a) part of a legislative affirmation of the principles that inform any exercise (by the Court as a delegate of the Crown and, more generally, by the State) of parens patriae jurisdiction; and (b) an adoption of those principles for administrative decision making, and administrative law, purposes as a standard that brings coherence to decision making across the spectrum of decision makers providing protection and care for persons in need of protection. 150The Mental Health Act, the Mental Health (Forensic Provisions) Act and chapter 4 of the NSW Trustee and Guardian Act provide an administrative structure, subject to judicial oversight, for discharge of the protective function of the state which, in the Anglo-Australian tradition, once resided in the Crown: P Powell, The origins and development of the protective jurisdiction of the Supreme Court of NSW (Forbes Society, Sydney, 2004), pp 1-9 and 73-76. 151The various purposive provisions of that legislation do not uniformly, in terms, incorporate principles that inform an exercise of the parens patriae jurisdiction of the Court (derived ultimately from the Crown) but they unmistakably mirror those principles. 152This can be seen, for example, in the exposition of the history and content of the Court's inherent protective jurisdiction in the judgment of the Supreme Court of Canada in Re Eve [1986] 2 SCR 388 at 407-438; 31 DLR (4th) 1 at 13-37, a treatment of the topic expressly approved by the High Court of Australia in Marion's Case at 175 CLR 258. 153There is an interconnectedness in the statements of purpose, or the like, scattered through the mental health legislation bearing upon the decision making processes of the Tribunal as it considers alternatives available in the "detention, care [and] treatment" of a forensic patient. 154Section 3 of the Mental Health Act is in the following terms: "3 The objects of this Act are: (a) to provide for the care, treatment and control of persons who are mentally ill or mentally disordered, and (b) to facilitate the care, treatment and control of those persons through community care facilities, and (c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and (d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care, and (e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care, treatment and control." 155A note to s 3 refers readers of the Act to both s 68 and s 105. 156Section 105 of the Mental Health Act is in the following terms: "105 Objectives of New South Wales public health system (cf 1990 Act, s 6) The objectives of the New South Wales public health system under this Act in relation to mental health services are to establish, develop, promote, assist and encourage mental health services that: (a) ensure that provision is made for the care, treatment, control and rehabilitation of persons who are mentally ill or mentally disordered, and (b) promote the establishment of community mental health services for the purpose of enabling the treatment in the community wherever possible of persons who are mentally ill or suffering from the effects of mental illness or who are mentally disordered, and (c) develop, as far as practicable, standards and conditions of care and treatment for persons who are mentally ill or mentally disordered that are in all possible respects at least as beneficial as those provided for persons suffering from other forms of illness, and (d) take into account the various religious, cultural and language needs of those persons, and (e) are comprehensive and accessible, and (f) permit appropriate intervention at an early stage of mental illness, and (g) assist patients to live in the community through the provision of direct support and provide for liaison with carers and providers of community services." 157Section 45 (in Part 4.3) of the NSW Trustee and Guardian Act requires that "[if the Tribunal], after reviewing a person's case under Part 5 of [the Mental Health (Forensic Provisions) Act)], orders that a person be detained in a mental health facility, it must: (a) consider whether the person is capable of managing his or her own affairs, and (b) if satisfied that the person is not capable of managing his or her own affairs, order that the estate of the person be subject to management under [the NSW Trustee and Guardian Act]. 158In the performance of that task, and related tasks, under chapter 4 of the NSW Trustee and Guardian Act the Tribunal is bound by s 39 of the Act. 159Section 39 is in the following terms: "39 General principles applicable to Chapter It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation. 160Section 39 mirrors the provisions earlier, and still, found in s 4 of the Guardianship Act 1987 NSW, not, in themselves, presently material. 161The statements of principle found in s 39 of the NSW Trustee and Guardian Act (and in s 4 of the Guardianship Act) more closely resemble the principles that govern an exercise of the Court's inherent, parens patriae jurisdiction than do the express terms of ss 40 and 74 of the Mental Health (Forensic Provisions) Act) and ss 3, 68 and 105 of the Mental Health Act because the first of the seven specified principles requires that "the welfare and interests of [a protected person or patient be] given paramount consideration". 162Nevertheless, upon the proper construction of ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act) and the legislative provisions that feed into them, or are ancillary to them, it is necessary to bear specifically in mind the importance attached (as a working assumption and foundational, informing idea) to consultation of "the welfare and interests" of a forensic patient. 163With varying degrees of emphasis depending on the context in which they must operate, ss 40 and 74 of the Mental Health (Forensic Provisions) Act) and s 68 of the Mental Health Act (in common with s 39 of the NSW Trustee and Guardian Act) require that practical expression be given to that foundational, informing idea. 164An exercise of protective jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, and not for the benefit of the state, or others, or for the convenience of carers: Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34. 165Sections 40 and 74 of the Mental Health (Forensic Provisions) Act) serve not to displace this foundational, informing idea but to highlight the need to take into account: (a)the status of a person as a forensic patient; and (b) the practical realities that have led to the patient's acquisition, and present enjoyment, of that dubious honour. 166Prima facie, a forensic patient is in need of detention, treatment, care and control on the fringes of, or within, the criminal justice system. The Tribunal is bound to take this state of affairs into account - within the framework of a protective concern for the benefit, and best interests, of each forensic patient as an individual.

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The importation of protective concepts in descriptive, statutory language 167Implicit in the idea that the Tribunal is to "review the case" of a "forensic patient" (as contemplated by ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act) is that a forensic patient has a "condition" - moreover, a condition that requires, or may require, "continued detention, care or treatment" of the patient for the protection of others or the patient from harm - in the context of the patient's ongoing engagement with the criminal justice system. 168The word "condition" does not, in terms, appear in either s 46(1) or s 47(1)(a), but it is found as the central concept in s 46(5)(b), in the context of decision making about the timing of a "review" by reference to whether or not a review is "required" at one time or another. 169An associated idea is found in ss 47(4) and 47(5) with reference to a forensic patient's "fitness" or "unfitness" to be tried for an offence: Cf, R v Mailes (2001) 53 NSWLR 1 at 269 [92] et seq. 170The concept of a person's "condition" is also implicit in the definition of "forensic patient" in ss 3(1) and 42 of the Mental Health (Forensic Provisions) Act. The former section picks up the latter. 171Section 42 is in the following terms: "42 Forensic patients For the purposes of this Act, the following persons are "forensic patients" : (a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under: (i) section 14, 17 (3), 24, 25, 27 or 39, or (ii) section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act), (a1) a person in respect of whom an extension order or interim extension order is in force, (b) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section [Emphasis added]." 172In these proceedings the plaintiff is a forensic patient by reason of s 42(a)(i)), read with s 39. 173Apart from the fact that they are "detained" pursuant to a court order, the common characteristic of forensic patients, as may be inferred from the legislative provisions enumerated in s 42(a), is a lack of mental capacity, manifested in the context of criminal proceedings, in which there has been, or appears to have been, conduct capable of being characterised as criminal, associated with a lack of capacity bearing upon the existence or degree of criminality or fitness for trial. 174Section 7(4) of the Criminal Appeal Act 1912 NSW provides a particular illustration of this. It is in the following terms: " If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant's action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law or may make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as the court considers appropriate." 175A person who has the status of a "forensic patient" commonly comes to the attention of the Tribunal under Part 5 of the Mental Health (Forensic Provisions) Act because there has been a formal, albeit perhaps provisional, determination that he or she has a form of "mental illness", associated with conduct which, in a wholly competent person, would have been a crime. 176By virtue of the Mental Health (Forensic Provisions) Act, s 3(1), the expression a "mentally ill person" has the same meaning as it has in the Mental Health Act 2007. 177By s 4(1) of the Mental Health Act, the meaning of the expression "mentally ill person" in that Act is to be found in s 14 of the Act. Section 14 is in the following terms: "14 Mentally ill persons (cf 1990 Act, s 9) (1) 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. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account [Emphasis added]." 178"Mental illness" is defined by s 4(1) of the Mental Health Act to mean "a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a)delusions, (b)hallucinations, (c)serious disorder of thought form, (d)a severe disturbance of mood, (e)sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d). 179In the Mental Health Act the concept of a mentally ill person (s 14) is associated, and contrasted, with that of a "mentally disordered person", defined by s 4(1) in terms found in s 15, in the following terms: "15 Mentally disordered persons (cf 1990 Act, s 10) A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person's behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person's own protection from serious physical harm, or (b) for the protection of others from serious physical harm [Emphasis added]." 180Although different consequences may attend characterisation of a person as "mentally ill" rather than "mentally disordered", the provisions of s 16 of the Mental Health Act mark out territory excluded from both concepts. 181Section 16 is in the following terms: "16 Certain words or conduct may not indicate mental illness or disorder (cf 1990 Act, s 11) (1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following: (a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief, (b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief, (c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy, (d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation, (e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity, (f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity, (g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity, (h) the person engages in or has engaged in immoral conduct, (i) the person engages in or has engaged in illegal conduct, (j) the person has developmental disability of mind, (k) the person takes or has taken alcohol or any other drug, (l) the person engages in or has engaged in anti-social behaviour, (m) the person has a particular economic or social status or is a member of a particular cultural or racial group. (2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind [Emphasis added]." 182The legislation in which the expression "forensic patient" appears as a fulcrum concept provides an administrative structure, that serves the due administration of justice with a deep appreciation of both purpose and functionality, in a free society in which: (a)if and to the extent responsible for his or her conduct, a person may be held to account for conduct found, in accordance with due process, to be criminal; (b)absent that degree of mental capacity required for an unequivocal finding of criminal responsibility, a person is, or may be, detained, cared for and treated in the interests of the due administration of justice; and (c)those charged with the administration of justice are bound to operate at the intersection between the criminal law, the State's obligation to protect those in need of protection and medical science. 183The expression "mental illness" is a 20th century phenomenon: JM Bennett, A History of the Supreme Court of NSW (Law Book Co, Sydney, 1974), p 125. It is predicated upon an optimistic assumption that at least some forms of incapacity can be ameliorated if not cured. It and its derivatives displaced a number of terms not now fashionable, including "lunacy", "idiocy" and "insanity". The historically important distinction between "idiots" and "lunatics" was referred to as late as the landmark Hadfield's Case (1800) 27 State Trials 1281, but it was apparently thereafter lost in the criminal law: JH McClemens and JM Bennett, "Historical Notes on the Law of Mental Illness in NSW" (1962) 4 Sydney Law Review 51 at 53 et seq. 184Nevertheless, a constant remains that a mentally ill person is "a person in need of protection" as that expression is understood under the general law and in description of this Court's protective jurisdiction: PB v BB [2013] NSWSC 1223 at [3]-[9], [28] and [39]-[54]. 185The relationship between the Court's inherent protective jurisdiction and the operation of the legislation (including, but not limited to, the Mental Health (Forensic Provisions) Act) governing forensic patients requires special notice in several respects. 186First, none of that legislation excludes or diminishes the Court's inherent jurisdiction. Unless that is done expressly, or by necessary implication, it is not done at all: In Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552; Christensen v Christensen (Queensland Court of Appeal, 2 July 1999) BC 9904473, citing Re Eve [1986] 2 SCR 388 at 426; 31 DLR (4th) 1 at 28. 187Secondly, nevertheless and unlike other legislation interacting with the Court's inherent jurisdiction, the Mental Health (Forensic Provisions) Act contains no express provision preserving that jurisdiction. Contrast the Mental Health Act 2007 NSW, s 167; Guardianship Act 1987 NSW, ss 8, 31 and 31G; Children and Young Persons (Care and Protection) Act 1998 NSW, s 247. 188A recent amendment to the Mental Health (Forensic Provisions) Act is necessarily predicated upon a recognition that the inherent jurisdiction of the Court remains intact, but it is only by a Byzantine route that that fact becomes manifest. 189Section 54A provides that "[a] person's status as a forensic patient may be extended in accordance with Schedule 1". Schedule 1 (entitled "Extension of status as forensic patient") provides, in Part 1 clause 1(1), that "[the] Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient". 190An order made under that clause is described, in clause 1(2), as "an extension order". 191Part 2 of Schedule 1 provides the procedural machinery enabling a minister administering the Mental Health (Forensic Provisions) Act to apply to the Court for an extension order against a forensic patient and for the determination of such an application. Part 3 of the Schedule provides that proceedings under the schedule are "civil proceedings" and, to the extent that the Schedule does not provide for their conduct, that they are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. It also provides, by clause 14, for an appeal to the Court of Appeal "on the question of law, a question of fact or a question of mixed law and fact". Part 4 deals with miscellaneous provisions. 192Clause 16, in Part 3 of the Schedule, is entitled "Preservation of Supreme Court jurisdiction". It provides that "[nothing] in this Schedule limits the jurisdiction of the Supreme Court apart from this Act." 193Thirdly, the fact that the Court's inherent jurisdiction is preserved does not operate, of itself, to confer that jurisdiction or a similar jurisdiction on the Mental Health Review Tribunal or on others exercising statutory authority. The Tribunal is constrained, as well as empowered, by the legislation that governs it. In no formal sense does the Tribunal operate as a delegate of the Court, although, by discharge of its statutory functions, it may relieve the Court of the necessity of undertaking work which, historically, could have fallen to the Court as a delegate of the Crown. 194Then, what (if any) significance does the Court's inherent jurisdiction have in the construction and operation of the Mental Health (Forensic Provisions) Act? 195To answer that question something must be said of the nature, and extent, of the inherent jurisdiction. 196The fundamental, fulcrum concept underpinning the jurisdiction is that of a person in need of protection. Such persons have been described, in different places and in different times, by a variety of epithets depending on the legal context in which they have been discussed. 197The Court's jurisdiction extends to protection of both the estate, and the person, of a person in need of protection: RH v CAH [1984] 1 NSWLR 694 at 704C-D, 706F-G, 708A and 708F-G. 198A central tenet of the protective jurisdiction is that it is exercised for the benefit of the protected person, not the state or others, save, possibly, members of the family of the protected person for the purpose of better serving the interests of the protected person. 199In due exercise of its jurisdiction, the Court adopts the perspective of the protected person and his or her best interests. 200Jurisdiction over forensic patients exercised by the Mental Health Review Tribunal, and the Court, and under the direction of either (acting within the limits of their respective jurisdictions), is designed to benefit, not to punish, a person in need of protection during the period of his or her mental incapacity. 201The outer limits of the Court's protective jurisdiction cannot, ultimately, be defined because the jurisdiction extends to whatever may be necessary to serve the ends for which it exists: Re Eve [1986] 2 SCR 388 at 410, 426, 427 and 437; 31 DLR (4th) 1 at 16, 28, 29 and 36. 202A hallmark of the jurisdiction is that the Court endeavours to administer it with a minimum of fuss and expense and a high regard for practical utility. 203These observations about the nature and extent of the inherent jurisdiction permit the following further observations to be made about the significance of that jurisdiction for the construction and operation of the Mental Health (Forensic Provisions) Act and cognate legislation. 204First, just as the breadth of the inherent jurisdiction cannot, in the ultimate, be defined so too the possibilities for its interaction with such legislation remain open. Resort is generally had to it in exceptional or uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 408 and 411; 31 DLR (4th) 1 at 14-15 and 17. 205Secondly, the legislation under consideration can, and should, be viewed as providing, in common with other legislation (such as the NSW Trustee and Guardian Act 2009 NSW, Part 4.3 (ss 43-53), which permits the Mental Health Review Tribunal, after reviewing a forensic patient's case under Part 5 of the Mental Health (Forensic Provisions) Act, to order that the estate of a forensic patient not capable of managing his or her own affairs, be committed to the management of the NSW Trustee under the NSW Trustee and Guardian Act) an administrative framework grounded upon the continuing availability of the inherent jurisdiction to deal with difficult, unforseen or exceptional cases or problems that require a determination having significance beyond a single case. 206Thirdly, the existence in the Court of an independent jurisdiction, with commensurate powers and duties, to protect a person relevantly in need of protection informs, at least: (a)the construction and operation of s 77A of the Mental Health (Forensic Provisions) Act insofar as it provides an avenue of appeal from determinations of the Tribunal; and (b)the manner of exercise by the Court of its discretion to grant, or without, relief available in administrative law "judicial review proceedings" (under the Supreme Court Act 1970 NSW, ss 65 and 69 and Part 59 of the Uniform Civil Procedure Rules 2005 NSW) in supervision of the Tribunal. 207This is reinforced by the requirement, found in substance both in s 90(1) of the Civil Procedure Act 2005 NSW and in r 36.1 of the Uniform Civil Procedure Rules, that the Court give such judgment or make such order "as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion". Similar language is found in the Supreme Court Act 1970 NSW, s 75A(10), subject to the operation of s 75A(4) of that Act and s 77A of the Mental Health (Forensic Provisions) Act). 208Subject to compliance with principles of procedural fairness, so far as may be required in the particular case, proceedings instituted in the Court pursuant to s 77A of the Mental Health (Forensic Provisions) Act) may, in an exceptional case, serve as a vehicle for an exercise by the Court of its inherent jurisdiction. 209Fourthly, concepts grounded in the experience and continued operation of the Court's inherent jurisdiction may inform the proper construction of legislation addressing similar issues. 210Fifthly, to the extent that an exercise of the Court's exercise of its appellate and supervisory powers is informed by its inherent jurisdiction, or it may be persuaded to exercise that jurisdiction directly, the inherent jurisdiction provides a template which may inform the operation of the mental health legislation generally. 211Sixthly, the protective perspective of the Court's inherent jurisdiction and its continued availability, if required, in a particular case, underscores a necessity to appreciate that the jurisdiction exercised by the Tribunal is, fundamentally, a jurisdiction driven not by what may or may not be in the interests of the State, but by concerns about protection of a forensic patient and others who may come into contact with such a patient. That protective purpose may inform the concept of "continued detention, care or treatment" found in s 47(1) of the Mental Health (Forensic Provisions) Act.

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THE NATURE OF AN APPEAL TO THE COURT 212The avenue of appeal for which s 77A of the Mental Health (Forensic Provisions) Act provides is unusual in its combination of three elements, each common enough in isolation, joined together to allow the Court a large measure of discretion as to whether or not to intervene and, if a decision to intervene is taken, the nature and extent of the intervention. 213Section 77A is, naturally, to be compared with ss 163-164 of the Mental Health Act, which provides for appeals to the Court from determinations of the Mental Health Review Tribunal relating to persons other than forensic patients. They provide for an appeal "by way of a new hearing and new evidence or evidence in addition to, or in substitution for," evidence adduced before the Tribunal. In the general understanding of lawyers, that form of appeal is described as an appeal de novo, not one which requires an appellant to establish error on the part of the decision-maker whose decision is under challenge: A v Mental Health Review Tribunal [2012] NSWSC 293 at [14]. 214Section 77A (which provides for an appeal that does require an appellant to establish error on the part of the Tribunal) is unusual in that it provides for an appeal mechanism in which any right of appeal is conditioned on a grant of leave to appeal and that condition, if satisfied, may be limited by the Court to "a question of law" or to "any other question": A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [41]-[43]. 215Section 77A is in the following terms: "77A Appeals against Tribunal decisions (1) A forensic patient or correctional patient who is a party to a proceeding before the Tribunal under this Act may appeal to the Supreme Court from any determination of the Tribunal in that proceeding, by leave of the Supreme Court: (a) on a question of law, or (b) on any other question, other than a determination referred to in subsection (4). (2) The Minister for Health may appeal to the Supreme Court from any determination of the Tribunal in a proceeding before the Tribunal under this Act, as of right: (a) on a question of law, or (b) on any other question, other than a determination referred to in subsection (5). (3) A victim of a forensic patient who is a party to proceedings under section 76 may appeal to the Supreme Court from any determination of the Tribunal under that section in that proceeding, by leave of the Supreme Court: (a) on a question of law, or (b) on any other question. (4) A person may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of the person, by leave of the Court of Appeal: (a) on a question of law, or (b) on any other question. (5) The Minister for Health may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of a person, as of right: (a) on a question of law, or (b) on any other question. (6) The Attorney General may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of a person, as of right, on a question of law. (7) An appeal under this section must be made not later than 28 days: (a) after the determination of proceedings by the Tribunal, or (b) in the case of an appeal by the Minister for Health or the Attorney General, of notification to the Minister or Attorney General by the Tribunal of the determination of the proceedings, unless the Court extends the period within which the appeal may be made. (8) An appeal under this section is to be made subject to and in accordance with the rules of the Court. (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. (11) If a party has appealed under this section to the Court against a determination of the Tribunal, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or determination made in respect of the proceedings. (12) If the Tribunal suspends the operation of an order or a determination, the Tribunal or the Court may terminate the suspension or, where the Court has suspended the operation of an order or a determination, the Court may terminate the suspension. (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. (14) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. (15) The Tribunal or any member of the Tribunal is not liable for any costs relating to a determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which an appeal is made under this Act, or of the appeal [Emphasis added]. " 216An appeal to the Court pursuant to s 77A attracts the operation of the Supreme Court Act 1970 NSW, s 75A: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [37]-[48]. If a determination by the Tribunal is of a type covered by s 77A(1) of the Mental Health (Forensic Provisions) Act, the jurisdiction of the Court to entertain an appeal from the Tribunal under ss 163-164 of the Mental Health Act is excluded by necessary implication: A v Mental Health Review Tribunal [2012] NSWSC 293 at [12]. 217Section 75A is in the following terms: "75A Appeal (1) Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court. (2) This section does not apply to so much of an appeal as relates to a claim in the appeal: (a) for a new trial on a cause of action for debt, damages or other money or for possession of land, or for detention of goods, or (b) for the setting aside of a verdict, finding, assessment or judgment on a cause of action of any of those kinds, being an appeal arising out of: (c) a trial with a jury in the Court, or (d) a trial: (i) with or without a jury in an action commenced before the commencement of section 4 of the District Court (Amendment) Act 1975 , or (ii) with a jury in an action commenced after the commencement of that section, in the District Court. (3) This section does not apply to: (a) an appeal to the Court under the Crimes (Local Courts Appeal and Review) Act 2001 , or (b) to a case stated under the Criminal Appeal Act 1912 . (4) This section has effect subject to any Act. (5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing. (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing. (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires [Emphasis added]." 218By virtue of this section, in combination with s 77A of the Mental Health (Forensic Provisions) Act, an appeal to the Court pursuant to s 77A may be limited to the materials that were before the Tribunal at the time it made its determination unless, on special grounds, the Court allows additional evidence to be adduced on appeal. 219At least in a case in which the Tribunal's determination has been made after a hearing (so as to engage the Supreme Court Act, s 75A(5)) and there has been no admission of additional evidence on appeal, the success or otherwise of an appeal will depend on whether the appellant can establish error on the part of the Tribunal: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-622; Harris v Caladine (1991) 172 CLR 84 at 124-125; CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111]; Eastman v The Queen (2000) 203 CLR 1 at 33 [104] - 34 [107]; Allesch v Maunz (2000) 203 CLR 172 at 180 [23]; Kostas at HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 399 [27] - 402 [32]. 220That the Tribunal is an administrative body is no impediment to the application of s 75A: Tasty Chicks Pty Limited v Commissioner of State Revenue (NSW) (2011) 245 CLR 446 at 453 [16], citing Kostas at 241 CLR 399 [27]. 221Although a right of appeal, by way of a rehearing, to a court, from a decision of an administrative authority, may generally be construed to provide for a hearing de novo (Builders Licensing Board v Sperway (1976) 135 CLR 616 at 621), the contrast between s 77A of the Mental Health (Forensic Provisions) Act and ss 163-164 of the Mental Health Act provides confirmation, if any be needed, that, in a case in which the Tribunal's determination was made after a hearing, the appeal to the Court is not by way of a hearing de novo: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [37]-[48], especially [40]. 222In deciding whether or not the Tribunal has fallen into error, the Court may be called upon to consider: (a)the nature of the determination under challenge. (b)whether the Tribunal duly performed the task entrusted to it by legislation, leading up to that determination: M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, Sydney, 2012), pp 57-58; Craig v South Australia (1995) 184 CLR 163 at 177; Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 82 at 141 [163]; Kirk v Industrial Court of New South Wales (2009) 239 CLR 531. (c)whether the Tribunal's determination is open to challenge on a question of law: M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013), chapter 4; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157, esp. 156G-157B. (d)insofar as the Tribunal's determination was discretionary, or related to a question of practice or procedure of the Tribunal, or day-to-day management of the detention, care or treatment of a forensic patient, whether the Tribunal can be said to have erred in a sense identified in House v The King (1936) 55 CLR 499 at 505. 223If (as is likely in many, if not all, cases involving a determination under ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act relating to the "continued detention, care or treatment" of a forensic patient) the determination made by the Tribunal is both made within jurisdiction and discretionary in character, the principles enunciated in House v The King (1936) 55 CLR 499 at 505 will be attracted. In that case, intervention by the Court will require an appellant (as the plaintiff aspires to be, subject to a grant of leave to appeal) to establish that the Tribunal has acted upon a wrong principle, allowed extraneous or irrelevant matters to guide it, mistaken facts, failed to take into account some material consideration, or acted upon the facts in a manner that is so unreasonable or plainly unjust as to permit the Court to infer that it has failed properly to exercise the discretion conferred upon it . 224The extent to which the Court can, and should, depart from findings of fact made by the Tribunal or infer facts from primary facts found by the Tribunal is governed by cases such as Warren v Coombes (1979) 142 CLR 531. 225In reviewing Reasons for Decision published by the Tribunal the Court approaches its task beneficially, fairly and not in an overzealous search for error: Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259 at 271-272. 226A distinctive feature of ss 46-47 of the Mental Health (Forensic Provisions) Act that may bear upon the operation of s 77A of the Act and, through it, s 75A of the Supreme Court Act is that s 46 requires the Tribunal to "review the case" of a forensic patient at regular intervals and with clear opportunities for different outcomes depending on the material before the Tribunal: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [49]-[50].

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THE REQUIREMENT FOR LEAVE TO APPEAL 227A distinctive feature of s 77A(1) of the Mental Health (Forensic Provisions) Act is that an appeal to the Court by a forensic patient lies only with a grant of leave (permission) by the Court, and the requirement for leave applies to an appeal on a question of law no less to an appeal on any other question. 228On an appeal under s 77A(1) which must (by virtue of s 75A(5) of the Supreme Court Act) proceed by way of rehearing, an appeal on any "question" must generally proceed, in substance, on a contention that the Tribunal has erred in some respect affecting the correctness of its determination. An error not bearing on the correctness of a determination under challenge is not, in a practical sense, an appellable error. 229On the face of s 77A the concept of an appeal "by leave" is contrasted with appeals "as of right" reserved, in defined cases, to the Minister for Health and the Attorney-General. 230Implicit in the requirement of s 77A(1) for a grant of leave "on a question of law" is the possibility that the Court may, upon an exercise of discretion, decline to entertain an appeal despite the existence of an error of law on the part of the Tribunal, even (by reason of s 77A(14)) an error relating to the jurisdiction of the Tribunal. 231An illustration of a circumstance in which the Court could appropriately refuse leave to appeal notwithstanding jurisdictional error on the part of the Tribunal would be a case in which, mindful of the nature of its own protective jurisdiction, the Court formed the view that the interests of a forensic patient applying for leave would be best served by a refusal of leave. This is an example of the subtle interplay between the inherent and statutory branches of the Court's protective jurisdiction. 232Consistently with this, the Court's discretion in deciding whether, under s 77A(1), to grant or withhold leave to appeal is one governed by the need, recognised in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505 and similar cases, to act within the scope and purposes of the legislation governing the decision to be made. That legislation includes not only the Mental Health (Forensic Provisions) Act and cognate legislation, but also the Court's own legislation. It extends to the Civil Procedure Act 2005 NSW, Part 6, provisions relating to case management. 233Subject to these observations, I adopt as correct the observations of Johnson J in A by his Tutor Brett Anthony Collins v Mental Health Tribunal and Anor [2010] NSWSC 1363 at [55]-[57] and [59]-[61]: "55 The breadth of the grounds of appeal which may be relied upon in an appeal by a forensic patient under s.77A(1) emphasises the significance of the gatekeeping function which the Court must exercise in determining whether to grant leave to appeal under that subsection. 56 In considering an application for leave to appeal, the Court will keep in mind a number of matters. Firstly, the Tribunal is a specialist statutory body charged with important responsibilities concerning forensic patients, including persons who have been found not guilty of serious crimes by reason of mental illness. The statutory scheme is such that the Plaintiff will not be released until the Tribunal is satisfied that the safety of the Plaintiff, or any member of the public, will not be seriously endangered by his release, with this process involving regular reviews under s.46 MHFP Act: R v Rodriguez [2010] NSWSC 198 at [56]-[57]. 57 Where leave to appeal is sought under s.77A(1)with respect to questions of fact, and in particular questions concerning the management and clinical treatment of a forensic patient, the Court should keep squarely in mind the specialist nature of the Tribunal in determining whether leave to appeal ought be granted: Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [16]-[19], [80]-[81]; Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [46]. This Court is not a specialist tribunal and has no medical knowledge of its own. There is no provision ion s.77A for the use of assessors in an appeal under that section. The Court should act cautiously in considering whether leave to appeal ought be granted where the appeal seeks to challenge practical and clinical aspects of the care, management, medical treatment and place of detention of a forensic patient: cf Lindsay v Health Care Complaints Commission at [46]; Chowdhury v Health Care Complaints Commission [2010] NSWCA 56 at [58].... 59 It may be said that the Tribunal, like the Guardianship Tribunal, is not a specialist tribunal in the sense used by Young J in the first proposition in Re R [2000] NSWSC 886 at [17]. However, the Tribunal includes specialist medical members and operates in a specialised field. In my view, it may be described appropriately as a specialist tribunal, in the same way as that term has been applied to disciplinary bodies such as the Medical Tribunal which include legal, medical and community members. 60 I accept the submissions of the Second Defendant [the Attorney-General] with respect to the requirement of leave to appeal in s.77A(1) MHFP Act. The inclusion of a requirement of leave to appeal is designed to restrict the appeal procedure to appropriate matters, and thereby promote the efficiency of the Court's appeal procedures: Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 359. It is, of course, unnecessary and unwise to lay down rigid or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177. However, leave to appeal will not ordinarily be granted where the proposed appeal is manifestly untenable or would be futile or is lacking in practical utility, or there is no live issue remaining between the parties. It ought not be expected that leave to appeal will be granted to allow ventilation of academic issues or for the Court to give a form of advisory opinion. 61 It is important to keep in mind that for leave to appeal to be granted, the Court must be satisfied not merely that there is a reasonably arguable case of error, but also that there is a reasonable prospect of substantive relief being obtained: Cachia v Grech [2009] NSWCA 232 at [13]." 234The general observations of the High Court of Australia in Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177 about applications for leave to appeal from interlocutory decisions on questions of practice and procedure apply, mutatis mutandis, to an application for leave under s 77A. Ordinarily, not only must there be an error of principle, but the determination under challenge must work a substantial injustice. 235Adopting what the High Court wrote by reference to In Re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, particular caution may be exercised by the Court in granting leave to appeal in respect of determinations of the Tribunal pertaining to the practice and procedure of the Tribunal or day-to-day management of the detention, care or treatment of a forensic patient. 236There is a material difference between: (a) an exercise of discretion on a point of practice and procedure or day-to-day management; and (b) an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with orders made by the Tribunal on a s 46 review, the result could be adverse to the proper administration of justice. Of course, the question of injustice flowing from an order of the Tribunal under challenge will generally be a relevant and necessary consideration, and an overly technical approach to an application for a grant of leave to appeal is not to be encouraged. 237Absence of an objection to a grant of leave may be a factor taken into account in favour of a grant of leave, but it is not decisive. A question whether leave should be granted, or not, is a question reserved, in every sense, for determination by the Court unconstrained by inter partes consent. 238Where, as in these proceedings, there has been a concurrent hearing of an application for leave and any consequent appeal, by the time of decision the Court will have had the benefit of full argument on the appeal so far as it might bear upon a grant of leave. 239Without the benefit of that argument I was inclined to grant leave to appeal. However, with the benefit of it, I have reached the conclusion that: (a)the determination of the Tribunal under challenge was, in its true character, essentially a determination about day-to-day treatment and care of the plaintiff; (b)the determination was clearly open to be made by the Tribunal; (c)the determination was not affected by any error of the type contemplated by the principles enunciated in House v The King (1936) 55 CLR 499 at 505; and (d)the determination worked no substantial injustice to the plaintiff insofar as it was at all times, and remains, open to him to accept a regime of oral administration of drugs in lieu of the depot injections proposed by his medical team. 240In these circumstances I have concluded, on reflection, that the appropriate course is to refuse a grant of leave. 241That course is no less appropriate because the road to decision has taken time and the exploration of important questions of principle, one of which is the basis upon which an application for leave to appeal should be determined in proceedings such as the present. 242It is not necessary for the purpose of these proceedings to resolve tensions between (on the one hand) the Supreme Court Act, ss 75A(4) and 75A(7) - (9) and (on the other) the Mental Health (Forensic Provisions) Act, s 77A(13) about the circumstances in which evidence beyond that before the Tribunal at the time of its determination can be adduced on an appeal by way of rehearing. Does an appellant have a right to adduce such evidence or does the admissibility of evidence depend on a preliminary exercise of discretion by the Court to allow it? 243It is not necessary to resolve this issue because, in these proceedings, the plaintiff has confined his application for leave to appeal to an application, under s 77A(1)(a), in relation to a question of law. He does not seek, by extending his application to s 77A(1)(b) to challenge findings of fact made by the Tribunal. 244Any tension between the Supreme Court Act and the Mental Health (Forensic Provisions) Act in this realm is probably best dealt with, in the first instance, by the Court requiring an applicant for leave to appeal under s 77A(1)(b) to identify with precision, first, any error alleged by the applicant to have been made by the Tribunal in its fact finding exercise and, secondly, the nature, scope and relevance of any evidence sought to be adduced on appeal. This approach, combined with close case management designed (consistently with the Civil Procedure Act s 56(1) imperative for the identification of "the real issues" in dispute) may serve, incidentally, to keep the comparatively tight rein on forensic patient appeals from determinations of the Tribunal that is evident in a contrast between s 77A and the Mental Health Act, ss 163-164.

[13]

THE PLAINTIFF'S APPEAL 245Had leave to appeal been granted to the plaintiff any appeal consequent upon the grant of leave would have been dismissed. 246That is because: (a)on a fair reading of the Tribunal's Reasons for Decision, including its unchallenged findings of fact; and (b)upon an examination of the processes of the Tribunal leading up to the making of the determination under challenge in these proceedings, there is no reasonable foundation (in fact or law) for the allegation of error that underlies the plaintiff's formulation of an appellable question of law. 247Contrary to contentions of the plaintiff: (a)the Tribunal did not claim an entitlement or intention to act, and did not act, upon a presumption that it should make no order departing from, or interfering with, arrangements for the care or treatment of a forensic patient devised by treating doctors authorised by Justice Health. (b)the Tribunal did not mis-state the test it was required by ss 46-47 of the Mental Health (Forensic Provisions) Act to apply upon a consideration of the plaintiff's application for a prohibition order. (c)the Tribunal did not delegate to the plaintiff's Justice Health treating doctors any decision making about his continued detention, care or treatment but, rather, itself exercised the power conferred on it, acting in the manner, and within the limits, laid down by its governing legislation: Dainford Ltd v Smith (1985) 155 CLR 342 at 349. (d)the Tribunal did not adopt a test that was more restrictive of the plaintiff's rights than justified by any provisions of the Mental Health (Forensic Provisions) Act. 248On a fair reading of the Tribunal's Reasons for Decision, and upon an examination of the Tribunal's decision-making processes, an objective analysis leads me to conclude that the Tribunal approached, and performed, its task (on a review of the plaintiff's case under s 46, and upon a consideration of what, if any, orders should be made under s 47) on the basis that: (a)a paramount consideration at each stage of the process up to and including the making of a determination was concern for the plaintiff's welfare, not the interests or convenience of any other person, the plaintiff's carers or the state. (b)it had, as the plaintiff contended, power derived from ss 46 and 47(1)(a) to make an order prohibiting the forced administration of depot medication in the detention, care or treatment of a forensic patient. (c)upon consideration of the plaintiff's application for a prohibition order, without limiting any other matter the Tribunal might consider, it was required to consider the principles of care and treatment identified in the Mental Health Act s 68 as well as the matters identified in the Mental Health (Forensic Provisions) Act, ss 74(a)-(c). (d)in response to submissions made by the plaintiff's solicitor, it ought to have particular regard to the principles of care and treatment identified in ss 68(a), (d) and (f). (e)regard should be had to the plaintiff's past, present and prospective medical condition, taking into account medical evidence available, not only from the plaintiff's Justice Health treating psychiatrist, and a competing opinion from a doctor specifically retained on behalf of the plaintiff for the purpose of giving evidence on the plaintiff's application for a prohibition order, but generally. (f)before declining to grant the prohibition order sought by the plaintiff, it should: (i) obtain from the plaintiff's treating doctors an explanation of the circumstances leading to their proposed recommencement of depot medication and their reasons for the proposal; and (ii) test those reasons against findings of fact about the plaintiff's medical condition and the medical opinion relied upon by the plaintiff in opposition to the proposal. 249The Tribunal did not, in terms, refer to s 40 of the Mental Health (Forensic Provisions) Act; but nothing turns on that. Its reasoning manifests an awareness of the objects identified in s 40 and is consistent with them. 250The findings of fact made by the Tribunal include the following: "In summary, [the plaintiff] has a moderate loading of historical risk factors and a high loading of dynamic risk factors for violence. One outcome of concern is the recurrence of arson or some other dangerous behaviour to further draw attention to his still intact delusional system. He actively resists treatment and his treating team. His poor insight, ongoing symptoms, hostile attitudes to staff and the high likelihood of non-compliance are highly problematic, and make deterioration in a less restrictive environment likely. He has not accepted the role mental illness has played in the index offence [ie, his setting fire to property on 19 March 2004 that led to the order for him to be detained] in any way and therefore cannot take appropriate responsibility for the index offence and would not take reasonable steps to ensure that such an action would not occur in the future. His ongoing persecutory beliefs provide a continuing motivation to engage in similar behaviour in the future and [he] demonstrates this by ongoing harassment of the treating team by vexatious complaints. ... [There] has been a decline in [the plaintiff's] mental health since cessation of depot medication. This has increased his hostility and increases the risk of aggressive behaviour or making threats of a similar nature to that which has occurred in the past. ... [The plaintiff's] clinical condition improved with depot Zuclopenthixol was commenced in 2009 and then deteriorated following its cessation in 2012. ... [The plaintiff] demonstrates such poor insight and hostile attitudes to treatment that it is likely that he is not fully compliant with oral antipsychotic treatment as prescribed at present. ... It is highly unlikely that [the plaintiff] would take medication if not closely supervised, therefore being on a long acting injectable medication would be a prerequisite for any progression beyond the Forensic Hospital to an environment where he might be granted leave. Allowing [the plaintiff's] mental state to deteriorate places staff at risk of harm from threats or aggressive behaviour... ... In his current state any negotiation for treatment or monitoring of [the plaintiff's] progress is impossible as he refuses interviews with his interviewing team. ... Regarding the choice of depot medication as [the plaintiff] refuses to enter into any discussion on this issue, refuses metabolic monitoring for side affects and threatens to stop his cardiac medication. ... ... [The plaintiff] had progressed through the hospital to [a named Ward] and was undertaking activities prior to his refusal of depot medication. Since that time he has regressed and no longer communicates with the treating team. ... [Because] of [the plaintiff's] attitude he has not been receiving the appropriate medication and his condition has regressed to the stage which has given rise to [the treating team's proposal to recommence treatment by depot injection]. [Reasons for Decision, pp 10-12]." 251In preferring (as it did) the evidence of the plaintiff's treating psychiatrist over the competing evidence of the psychiatrist retained by the plaintiff's solicitors, the Tribunal (at Reasons, pp 11-12) weighed in the balance three particular factors. First, the forensic psychiatrist's opportunity for observation of the plaintiff was less than that of the plaintiff's treating doctors. Secondly, the opinion of the plaintiff's forensic psychiatrist was directed, at least in part, to devising a treatment plan to test whether the plaintiff does really (as the treating psychiatrist believes) have schizophrenia at all. Thirdly, the forensic doctor did not address the question (which the Tribunal had specifically raised with the plaintiff's solicitor) of how suitable medication would be administered if the plaintiff continued his refusal to accept treatment such as that proposed by him. 252The particular passage of the Tribunal's Reasons for Decision upon which the plaintiff focuses in these proceedings is the following paragraph (at p 12): "The Tribunal was assisted by the oral and written evidence and the submissions made on behalf of [the plaintiff]. However, it was of the view that in all the circumstances [the plaintiff's] treatment is one essentially for the treating team. It was the Tribunal's view that it would only be in an exceptional case that it would make orders with respect to a patient's medication. The Tribunal did not consider this to be an exceptional case. Accordingly, the [plaintiff's] application [for an order prohibiting treatment by depot injection] was refused." 253That paragraph cannot be read in isolation or, in particular, independently of the findings of fact made by the Tribunal. Preceding passages in the Reasons demonstrate that the Tribunal had, on an independent exercise of judgement, made findings of fact bearing upon the decision it was called upon to make on the plaintiff's application. 254The Tribunal's determination that the plaintiff's application be dismissed was grounded on findings of fact that do not lend it to characterisation as unreasonable. 255The Tribunal's stated deference to a treating team's prescription of medication is not only not unreasonable in itself, but is responsive to the plaintiff's forensic psychiatrist's invitation that the plaintiff be treated in an experimental way unsupported by a plan for its practical implementation. 256The deliberate decision of the Tribunal, made after due consideration of evidence of particular facts and competing opinions, to defer to the judgement of the plaintiff's treating doctors is not fairly able to be characterised as an error of law on the part of the Tribunal.

A (by his tutor Brett Collins) v Mental Health Review Tribunal

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