An anatomy of failures
In early 2023, the Victorian Government will announce new Commissioners for the Mental Health and Wellbeing Commission. This new body will replace the Mental Health Complaints Commission (Commission), a regulator of the mental health system that has operated with significant powers for nine years. Some reflections as we reach the final months of the Commission’s operation.
Mental health systems since their inception have conflicted with human rights. This conflict is in part due the unconscious connection in mental health systems between care and control. Historian Roy Porter describes the early asylums as:
‘the asylum was neither just a site for care and cure, nor just a convenient place for locking up inconvenient people (“custodialism”). It was many things all at once.’
These custodial elements have shaped Australia’s mental health systems. With the introduction of separate mental health institutions, force remained in use, though this was increasingly justified through checks and balances. These checks and balances – that include mental health tribunals (to authorise and review compulsory treatment orders) and complaints bodies such as the Commission (to address instances of harm and ensure compliance with the law) – are how governments justify the use of force in mental health care, even if it violates human rights.
The summary of this justification from governments is: even if our mental health laws violate human rights, we will ensure mental health services follow our mental health laws. It will be tightly regulated, and the minimum rights and standards contained within mental health laws will be enforced.
Surely, it would be perverse if the law functioned to allow mental health services to use detain and use force, but was ignored by many services when it came to safeguards, rights and minimum standards for consumers?
Unfortunately that is the case, and bodies such as the Commission have much to answer for. I have detailed elsewhere the rights breaches within Victoria’s mental health system, so only a summary is due. I supported 34 people to give evidence to a Royal Commission, with damning themes of rights breaches. I co-authored research that found rights breaches were so common as to render rights illusory. There is evidence that restrictive practices are regularly used outside mental health laws, and potentially unlawfully. When people are detained, they often experience gender-based and sexual violence, another human rights breach. People using clinical mental health services enjoy significantly lower health outcomes – such as dying 30 years younger than the general population – representing another form of systemic discrimination. There will come a time where it will be uncontroversial to describe these as gross and systemic human rights violations.
The Commission has been granted enormous legal and cultural power to change the system, only to be thwarted by its own efforts to avoid using that power. Of course, that isn’t how the people working there would view it, and the work of individuals is shaped by the culture set at the top. People did and do, work hard, long hours. But there’s a difference between being busy, and making a difference. Many statutory agencies expend an inordinate amount of time appearing to do their job, being everything to everyone. They do this at the expense of their original mandate and those who desperately need help.
That is the case with the Commission. As at February 2023, the Commission has been in operation for nearly nine years, receiving in excess of 14 000 complaints. In that time, it has never issued a single compliance notice (an order to follow the law). And yet during that time, we’ve had widespread human rights breaches across the mental health system.
Speaking to the media on the issue, the Victorian Government stated:
‘The current MHCC uses a range of resolution tactics to resolve issues raised through complaints – including formal conciliation which makes sure complainants can continue to engage with the mental health system in the long-term,’ [emphasis added].
So, the purpose of the complaints process, isn’t to protect people or to uphold their human rights, but to ensure they keep using services that violate their human rights? Speaking after a separate where these complaints numbers, the Commission stated:
‘When consumers and carers complain to the MHCC [Commission], we work to ensure they are heard by the service, that the service provide an explanation or apology for their experiences where appropriate, assess whether legislative requirements were met and if any necessary improvements should be recommended.’
So, you would get the impression, that Commission has human rights at the heart of what it does (that is after all what they state). How do these statements fit with what we know, and don’t know, about Victoria’s mental health system.
Not well. As noted, there have been widespread breaches of the mental health and human rights laws across the system.
Those 34 people who gave evidence also spoke about their experiences of safeguarding and oversight bodies such as the Commission. One stated ‘I made a complaint to the MHCC over the phone and never heard from them.’ Another said:
‘I have sought help and refuge from the mental health services. I made a complaint to the Mental Health Complaints Commissioner, after being entertained by them that I would be taken seriously. But the real issues were not addressed, because neither the MHCC or the service were willing to acknowledge the harm that they have caused me. The service was meant to sit down with me and engage in the kind of collaborative conversation about my experiences that I needed. This never happened on anything except what they chose. It was to fulfill a formality.’
As discussed, another spoke to the Guardian.
Another of the 34 people concluded that the lack of accountability and improvement reflected and reinforced a poor culture of care. They stated it:
‘highlights a culture where they believe they are above everything else. Above the patients and the law. They gather and become strong in their packs, but we’re alone. They will see something wrong happening, but 99.9 per cent of them will turn their backs or pretend to not see it. I had heaps of nurses injecting me when I didn’t have psychosis. Just following one another, dragging me to the slaughtering shed.’
In information I obtained under Freedom of Information, surveys revealed that 54% of people disagreed that their complaint resulted in positive changes for them. It’s important to note that 65% indicated that they thought their complaint had a positive impact on the mental health service.[1] These numbers should be read with the majority of feedback that said there were not individual outcomes for them, and substantial (35%) group of people that disagreed that there was any broader benefit. Some of their qualitative feedback stated:
‘Nothing changed.’
‘No solutions no outcome as to the complaint’
‘What is the point of [an] investigative body if it has no authority?’
‘I had legitimate grievances but I found that the MHCC had very limited powers and were unable to resolve my issues. They acted merely as a sounding board.’
Similar feedback was obtained in earlier years (2). It is important to note the significant power imbalances and information asymmetries between the Commission and the people who complain.
So we have a regulator stating that it uses all measures to assess compliance with the law and improve services, while everything around them is burning down.
How do we square this circle? In the rest of this article, I want to highlight how the Commission has sought to distance itself from the human rights breaches unfolding around them. I do so by highlighting four broad strategies, which I call the 4 D’s: deny (it’s your responsibility), downgrade (the issue), disappear (the evidence), defer (to the services).
1. Deny: deny that you are a regulator
In response to more recent criticism (see note at bottom of the article), the Commission has bristled at being characterised as a ‘regulator’ (which in effect means a body that monitors and gives effect to the law). This is both wrong, and revealing.
It is wrong, by the Commission’s own standards. They have already framed themselves as regulators in their evidence to the Royal Commission, which I awkwardly pointed out. The Commission has been granted enormous coercive powers to enforce the law, including investigatory and compliance powers. These are, by any measure, regulatory powers aimed at ensuring compliance with mental health laws.
Framing yourself not as a regulator reduces your responsibility for compliance issues in the system. It is an attempt to erase the question ‘what have you done during this mess?’.
This strategy has public and private elements. The Commission will write to journalists asking for corrections of this nature following public articles critical of them. Privately, they also frame that they lack the sufficient powers to do anything about issues that consumers and carers raise, when they do in fact have those powers. This speaks to the perception from surveyed consumers and carers that the Commission doesn’t have powers, when in fact, it is just choosing not to use them (or perhaps reveal them).
2. Downplay: downplaying human rights breaches to downplay the need to respond
One of the best strategies to minimise the need to act as a regulator is to minimise the problem. This unfortunately explains a great deal of the Commission’s under-enforcement over nine years. I have and will be writing about this in more depth, but examples from the Commission’s own examples illustrate this.
Take ‘Adhira’s’ complaint. Her complaint highlighted a range of human rights issues, as well as issues of institutionalising environments that have long been highlighted as oppressive. The outcome of the complaint was that Adhira would get more information on how the institution worked in advance (rather than changing the institution itself). The outcome also failed to address issues of potential human rights breaches and the justifiable concerns that someone might have for compensation. One of the ways that this downgrading was achieved is through avoiding a human rights framing, and instead framing it as a ‘communication’ issue.
Or take ‘Emily’s’ story, an Aboriginal woman who did not receive the care she needed after discharge from the hospital. When we know the widespread experiences of racism within Victorian healthcare, it is curious that this isn’t explored or probed. Much like the underlying power relations were unexplored in Adhira’s story, the social and structural dynamics that might underpin these experiences remain invisible. Emily’s Aboriginal cultural rights should be protected at all times. However, the Commission appears to have failed to assess this. Ultimately there seem to be no recommendations to improve the service, meaning someone else in Emily’s circumstances might be fated to the same experience.
A regulator’s job – and with the powers vested in them, the Commission is a regulator – is to try drive a system towards compliance with the law and other policy objectives. This task is a complex process that requires a pairing of strong commitment with sophisticated use of legal and cultural powers that a regulator holds. This is commonly articulated as ‘responsive regulation’ (see podcast discussion with the ideas founder, Professor Braithwaite), which is often articulated though an ‘enforcement pyramid’. Like the food pyramid we read as children, most of the work should be done at the bottom of the pyramid around education, training and other initiatives. However, these methods are voluntary, and it is only the possibility of the more coercive tools at the top of the pyramid that encourage providers to engage with the regulator on the ‘lower’ rung initiatives.[2]
However, responsive regulation always carries the risk of capture,[3] meaning the regulator in trying to be responsive to the needs of services, ultimately loses sight of its core purpose. It meets the system’s needs rather than the ultimate beneficiaries (the public, or in this case, consumers and carers). By continuing to frame issues in ways that minimise its responsibility to act, the Commission is continuing to meet the system’s needs rather than consumers and carers.
3. Disappear: disappear the data that would hold services and the Commission accountable
‘A lack of transparency results in distrust and a deep sense of insecurity’. This is a quote from the Dalai Lama no less. It applies well to what we know about human rights protection and effective regulation.
For years stakeholders asked the Commission to share data on complaints made about mental health services. It’s a conversation I’ve continued for in excess of five years. Data on each mental health service is an indicator (though this is part of a broader set of data) of performance. Similar comparative data is used to assess mental health services on their use of restrictive practices. Good data would include not just the number of complaints, but the recommendations that the Commission makes to services to improve their performance. Transparent publication of recommendations allows the community and more importantly, consumers and carers, to assess if or how recommendations are being implemented by services. Rather than undermine the Commission’s work, publishing recommendation extends the ‘eyes and ears’ that monitor their implementation.
This was resisted for years, including following the Royal Commission that recommended the releasing of service-level data. I also obtained this data under Freedom of Information and was talking with a journalist about it. The journalist Melissa Davey (and Adeshola Ore) reached out to the Commission for comment on what the data revealed. Rather than respond to the journalist, the Commission threw up data onto their website in what can only be considered an attempt to kill the story (though it was ultimately published).
While service-level complaints data has been released, recommendations have not. In rejecting the Freedom of Information request (which is under review by the Office of the Victorian Information Commissioner), among the reasons were that it would breach individual complaintant’s privacy. It’s important to set out the reasoning here to highlight the steps taken to obscure transparency. My request only asked for recommendations relating to service improvements (such as changes to policies and procedures or training for staff) and not recommendations relating to individual resolutions (like “meet with [fictional] John to apologise and make a new treatment plan”). The logic from the Commission (letter here) being: because John could identify the recommendations to change policies and procedures (even though they don’t mention him, but they were in a letter that accompanied his closure of the complaint), it was breaching his privacy….even though the only people that could identify John… are John and the people already party to the complaint. Absurdity!
For all the time excuse-making and concealing data, effort could be spent releasing it and pushing us towards a better system.
4. Defer: defer your work to others via self-regulation
It seems like every Royal Commission or inquiry we have, we are told again that industries should not self-regulate. If there is ever an argument to self-regulation, it is where the costs of government regulation is high and the chance of harm is low. While regulation in mental health settings is costly, it is necessary given the gravity of the harms that poor mental health practice can cause.
This news hasn’t hit the Commission yet, which is increasing it’s reliance on self-regulation. The ‘It’s OK to complain’ campaign is a case in point. This campaign encouraged individuals to make complaints directly to services rather than to the Commission. The project does this by developing a self-assessment tool for mental health services to check whether their internal complaints process is effective or not. This tool, in principle, would be valuable. However, there are several things to point out here:
The tool is a self-assessment, with no requirement for participation from people who use the service (and who make complaints)
The tool is completely voluntary, so services are under no obligation to use it
The tool is anonymous, meaning the Commission doesn’t collect any data from services to assess the quality of internal complaints processes.
These flaws mean it’s uptake amongst services could be piecemeal, the way it is used uncontrollable, and because it collects no data, the Commission and sector is none-the-wiser to the comparative quality of each service.
Despite this, the Commission uses the self-assessment tool as a vehicle to encourage people to make complaints directly to services. The Commission did this, despite the fact that mental health services were not complying with the law by providing basic complaints information. Services such as South West Health Care were particularly egregious in this respect. There is no evidence that the Commission took enforcement action in response to this. Instead, they have rewarded services with less oversight and more self-regulation. They don’t collect any data on the tool, so there’s no way of knowing who has used it or if it has worked.
Concluding thoughts on the need for improvement
The Commission is due to be dissolved and replaced by the Mental Health and Wellbeing Commission as part of the reforms arising from the Royal Commission. With powers largely the same (there is an additional power to conduct public inquiries), the question is whether the culture will remain the same. This article has argued that the current iteration of the Commission has failed.
There are justifiable questions about what a better future Mental Health and Wellbeing Commission should look like. In work soon to be published Professor Sharon Friel and I articulate a framework – the Human Rights and Mental Health Regulatory Framework – to do so. I hope you continue the conversation with me at that stage.
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[1] It is worth noting that the question was phrased in a way that focused more on the person than the Commission’s performance, it asked them to state whether they agreed or disagreed with the following statements ‘I influenced positive change for myself’, and ‘I influenced positive change for others’. The measure should be on the Commission’s performance, not a framing that makes the person responsible for the outcomes. This feedback is collected by ORIMA but paid for by the Commission.
[2] Simon Katterl, ‘Preventing and Responding to Harm: Restorative and Responsive Regulation in Victoria, Australia’ (2022) Early View Journal of Social Issues.
[3] Ian Ayres and John Braithwaite, ‘Tripartism: Regulatory Capture and Empowerment’ (1991) 16(3) Law & Social Inquiry 435.
Relevant research:
Simon Katterl, ‘Regulating rights: developing a human rights and mental health regulatory framework’ in The Future of Mental Health, Disability and Criminal Law, edited by Kay Wilson, Yvette Maker, and Piers Gooding. Routledge, 2023.
Simon Katterl, ‘From harm to healing: restorative and responsive mental health regulation’ (2022) Journal of Social Issues 1.
Simon Katterl, ‘Examining the workplace rights of mental health consumer workforce members’ (2022) Online First Australian Health Review 1.
Simon Katterl, ‘Regulatory oversight, mental health and human rights’ (2021) 26(1) Alternative Law Journal 149.
Simon Katterl & Chris Maylea, ‘Keeping human rights in mind: embedding the Victorian Charter of human rights into the public mental health system’ (2021) 27(1) Australian Journal of Human Rights 58.
Chris Maylea, Simon Katterl, Brendan Johnson, Susan Alvarez-Vasquez, Nicholas Hill and Penelope Weller, ‘Consumers’ experience of rights-based mental health laws: Lessons from Victoria, Australia’ (2021) 78 International Journal of Law and Psychiatry DOI: 101737.
Simon Katterl, ‘The importance of motivational postures to mental health regulators: Lessons for Victoria’s reforming mental health system’ (2021) 29(6) Australasian Psychiatry 638.
Simon Katterl, ‘Human rights from below: using bottom-up regulatory mechanisms to improve mental health systems’ (Conference presentation, Annual Conference TheMHS, 12 October 2021).
