Better integrate the Charter into new mental health laws

I am circulating my views on the current discussion paper on the Mental Health and Wellbeing Act (MHWA). I am keen for your engagement and to hear your views.

The intention to shift the language in the mental health principles from “must have regard” to “must make all reasonable efforts” to comply with the principles is an improvement. However, there are better alternatives that already exist in Victorian law.

Keen to hear your thoughts.

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The Mental Health Act 2014 (Vic) principles have failed to integrate into systems management and service delivery. This problem can partially be explained by the lack of clarity as to how the principles are applied in practice,[i] which is resolved in part by forthcoming guidance from the Mental Health and Wellbeing Commission on the principles, as indicated in the discussion paper. However, the other issue is that the principles do not generate clear responsibilities and lack judicial oversight – it is unclear whether a breach of the principles is justiciable, giving rise to a cause of action (can you take a breach to court).

Though imperfect, the Charter provides a better model for the systematised integration of principles both vertically (from systems manager to staff) and horizontally (across services). Informing policy and law was the explicit intention of the Charter. Minister Hulls, introducing the Bill said:

‘In conjunction with the general law, the charter provides a basic standard and a reference point for discussion and development of policy and practice in relation to these often sensitive and complex issues.’[ii]

Specifically, he was talking to the obligations on public authorities. Section 38(1) provides that it is:

unlawful for a public authority to act in a way that is incompatible with a [Charter] right, or in making a decision, to fail to give proper consideration to a relevant [Charter] right.

This obligation has two limbs: the first requires substantive compliance with Charter rights (set out in sections 8-27), while the second requires proper consideration of Charter rights.[iii] The Victorian Government has already been criticized for its failure to integrate the Charter into the mental health system.[iv] These rights, which speak to equality before the law, protection of autonomy, Aboriginal cultural rights, and more, are largely the same as the principles reflected in the proposed Mental Health and Wellbeing Act. That is, the proposed principles do a good job of reflecting the existing human rights obligations under the Charter.

The issue, however, is that the regulator for the Charter is too distant, and the test for the mental health principles is too weak. The Charter has a stronger test for compliance – properly consider and comply – but the regulator is the Ombudsman; an agency split across various regulatory areas with limited resources, limited complaints functions, and limited enforcement powers. Though there is the ability for some Charter breaches to “piggy-back” onto court claims of breaches of other laws, this is difficult and rare. Meanwhile, the principles proposed here have a weaker enforcement mechanism, but with a stronger regulator (the Mental Health and Wellbeing Commission) who will have a smaller space to regulate, greater relative resources and stronger powers.

A resolution is for the mental health principles to be constructed in the same way as Charter rights. That is, the test for compliance with the principles should state:

‘It is unlawful for a decision-maker to act in a way that is incompatible with a mental health principle, or, in making a decision, fail to give proper consideration to a principle.’

Such a provision would be subject to the same limitation clause under the Charter (section 7(2)), so that a balancing of interests between different principles can be done lawfully.

Replicating the same model of section 38(1) for the duties to properly consider and comply with the principles would create better mental health policy and improve accountability. One of the benefits of the Charter’s approach to human rights was that it “front-ended” human rights considerations from the beginning of policy development, [v]provided greater accountability, and importantly, enabled judicial oversight as well as regulatory oversight. “All reasonable efforts” is a lower standard than that which already exists in law. Moreover, case law on the section 38 Charter obligation explains these concepts, such as “properly consider”, whereas such guidance does not exist for “all reasonable efforts” indicated in this discussion paper. Therefore, any person or organisation exercising a function under the MHWA must properly consider and comply with the mental health principles. A breach of the principles should give rise to regulatory oversight from the MHWC as well as a possible cause of action (judicial oversight).

[i] Simon Katterl, ‘Regulatory Oversight, Mental Health and Human Rights’ (2021) 46(2) Alternative Law Journal 149.

[ii] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Rob Hulls).

[iii] Janina Boughey and Adam Fletcher, ‘Administrative Decision-Making under Victoria’s Charter’ (2018) 25(1) Australian Journal of Administrative Law 10.

[iv] Simon Katterl and Christopher Maylea, ‘Keeping Human Rights in Mind: Embedding Victoria’s Charter of Human Rights into Public Mental Health Services’ [2021] Australian Journal of Human Rights.

[v] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Rob Hulls).