Do human rights competencies matter to public mental health services?
An informal review of position descriptions
Many public mental health services claim to prioritize human rights, but do they really? These obligations extend across all facets, from staffing to recruitment processes. Do the current position descriptions truly reflect this commitment?
Human rights apply to everyone, all of the time. This is both a moral statement, and a legal obligation that Victoria’s human rights laws impose on all public mental health services. Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Mental Health and Wellbeing Act 2022 (Vic), public mental health services must properly consider and comply with human rights and the mental health and wellbeing principles whenever making rights-impacting decisions.[1]
These duties apply to how public mental health services go about their staffing and recruitment processes.
But first, what are these legal obligations?
The Charter
The Charter of Human Rights and Responsibilities Act 2006 is a critical framework designed to protect and promote human rights in Victoria, Australia. It enumerates 20 fundamental human rights, including the right to life, liberty and security, freedom from torture, freedom of expression, and cultural rights. This Charter applies to all Victorian laws and policies, ensuring they align with these essential rights. Additionally, it mandates that public authorities not only act in compliance with human rights but also consider these rights in their decision-making processes. This legal structure is a crucial minimum standard for mental health professionals and services, emphasising the necessity to respect and uphold human rights in all aspects of care and treatment.
As a reminder, the Charter human rights are detailed below.
The Mental Health and Wellbeing Act
The Victorian Mental Health and Wellbeing Act 2022 removes more than it grants human rights. On the one hand, it restricts human rights to equality, liberty, freedom from torture and other fundamental human rights by authorising the use of detention, forced treatment and restrictive practices. As a small measure of protection, the Act imposes stringent requirements on public mental health services, mandating adherence to established mental health and wellbeing principles when performing any function under the Act. Health professionals must understand their obligations under this Act to ensure compliance and uphold the integrity of mental health care within Victoria.
And the mental health and wellbeing principles under the MHWA are detailed below.
Applying both the rights and principles has significant implications for public mental health service governance, design and operations. As detailed elsewhere, the Victorian Government public mental health services have significant room to improve. With the introduction of the new Mental Health and Wellbeing Act 2022, we should be expecting that improvement.
A small measure of whether we are achieving a more rights-based culture can be found in staffing decisions. Who we select, how we onboard and train them, and how we manage and support them, all have implications for human rights. These decisions and moments, therefore, attract human rights obligations under both the Charter and the MHWA. Victoria’s workforce capability framework, Our workforce, our future: A capability framework for the mental health and wellbeing workforce[2] also details the following capabilities, which are linked to human rights:
Embedding responsible, safe and ethical practice, which refers to, among other things, supported decision-making competencies that are ‘consistent with Victoria’s human rights frameworks’[3]
Working with Aboriginal consumers, families and communities, which among other things, is connected to the right to equality (to not get a lower standard because you are an Aboriginal Victorian), the right to protection of of families and children, and the right to culture
Understanding and responding to substance use and addiction, noting that people who experience alcohol or other drug use issues should not unreasonably be faced with a lower standard of access and quality to public mental health services (the right to equality)
Working effectively with families, carers and supporters, which can refer to working with families where there is a positive relationships between them and the consumer around their care, and at a minimum, providing information and supports to meet their needs separate from a mental health consumers’ treatment-decision-making (the right to protection of families and children).
This all sets, in theory, the expectation that public mental health services recruit people with these competencies, or have measures in place to support them to develop these capabilities.
An informal review of public mental health position descriptions
To get a pulse-check, I decided to undertake an informal review of current position descriptions. Position descriptions identify what public mental health services care about when selecting mental health professionals to work at their service. Key accountabilities define what they see the person doing, and key selection criteria assess whether the person will be able to do that.
On 1 June 2024 I undertook an informal review of publicly available and advertised mental health positions advertised on the Victorian Government’s careers website, Ethical Jobs and Seek website. I have drawn a sample of seven position descriptions, detailed below:
In this pulse-check I’ve taken a simple search technique of searching for the following terms:
“Mental Health and Wellbeing Act” “Charter”[5] “Rights” “supported decision-making”[6] “culture” “culturally”[7] and “trans”.
I have also included “Mental Health Act” to identify whether the service may be copy-pasting position-descriptions despite the Mental Health and Wellbeing Act 2022 replacing the Mental Health Act 2014 on September 1 last year.
I then identify whether these terms, which indicate some consideration of the service’s legal obligations, are present in the position description.
Results
As you can see in the figure below, the results are quite poor. Graded in orange with a N are the areas where there was not mention of relevant rights-informed terms. Graded in green with a Y is where there were mentions of those concepts or competencies in the position description. In orange with a Y under “Mental Health Act” is where it appears that there has been a copy-paste job on the PD, despite legislative changes on 1 September last year. In white under that heading is where there is no mention of the Mental Health Act.
In a rough account here, we have 49 different opportunities to reference key concepts and competencies (excluding an incorrect reference of “Mental Health Act”). Only four times was this referenced in these position descriptions. This means in 91.8% of the opportunities to reference these concepts, they were not referenced.
Looking at position descriptions as a whole and whether the service identified any relevant concepts across them, there were seven position descriptions, with three position descriptions containing relevant concepts: Royal Children’s Hospital, South West Health Care, and Forensicare. That leaves the majority (four out of seven), failing to do so.
What can we glean from this?
There are obvious limitations to this informal review, including the potential for sampling bias, a small sample size, and the failure to undertake a more systematic search term process. Another limitation is that evidence of these terms should by no means indicate the service is complying with its human rights obligations: it is instead an indicator that it may give some priority to meeting these obligations in other parts of its governance, design and operations.
This informal review indicates several critical issues. Position descriptions are failing to demonstrate a commitment to human rights or incorporate essential concepts like supported decision-making, culturally responsive care, and inclusive mental health care for trans and gender-diverse individuals. This oversight indicates a disconnect between the capabilities framework announced by the Victorian Government and the prioritised capabilities of public mental health services funded by the Victorian Government.
The practical upshot of this is that services in receipt of tax payer money and bound by human rights and mental health laws are not:
Demonstrating compliance with those laws through position descriptions
Communicating their commitment to human rights to the future workforce and to consumers and families, carers and supporters
Selecting based on competencies that will ensure people uphold, rather than violate, human rights.
Addressing the position descriptions in isolation would be merely cosmetic and performative. Instead, this highlights that the governance, design, and operation of current public mental health services may still largely overlook the legal obligations that underpin them. There is more work to do.
Notes
[1] In the case of the Mental Health and Wellbeing Act 2022 this is in fact to ‘make all reasonable efforts to comply’.
[2] Department of Health (State of Victoria), Our Workforce, Our Future: A Capability Framework for the Mental Health and Wellbeing Workforce (State of Victoria, 2023) <https://apo.org.au/sites/default/files/resource-files/2023-12/apo-nid325305.pdf>.
[3] Ibid 31.
[4] I couldn’t find a position description (even after logging in to start a mock application) so instead have used the public web page advertisement that seems to be in lieu of a PD.
[5] I exclude references to the Australian Charter of Healthcare Rights as this is the incorrect reference for public mental health services to make as it is an unenforceable policy document. All public mental health services are instead bound to the Charter of Human Rights and Responsibilities Act 2006.
[6] I also search for “supported decision making” without a hyphen.
[7] I exclude references to “culture” and “culturally” that do not relate to responding to the culture of the consumer or their family, carers, supporters or kin.
[8] Eastern Health uses the term culture in its organisational bio, but no in the position description.
[9] The position description notes relevant “mental health and legal frameworks”, but does not mention either the Mental Health and Wellbeing Act 2022 nor the Charter of Human Rights and Responsibilities Act 2006.
[10] Forensicare notes that it ‘acknowledges and values the cultural and social diversity’ of consumers, carers and staff. This has been (somewhat generously) included despite it not being part of the key selection criteria or accountabilities.
[11] The PD misidentifies the legislation as “Mental Health Act 2022”, rather than the Mental Health and Wellbeing Act 2022.
[12] The PD discusses “support to consumers in their own environment, and/or other settings as indicated by clinical guidelines”, which is distinct and at times contrary, to supported decision-making models and frameworks.
