Five Questions ahead of Victoria’s Landmark Mental Health and Wellbeing Commission
In March 2021, the Royal Commission into Victoria’s Mental Health System (Royal Commission) handed down its final report.[i] In it, the Commissioners detailed a series of findings, including common instances of human rights violations, as well as 65 recommendations.[ii]
One of those recommendations was the development of a new Mental Health and Wellbeing Commission (MHWC) to replace the current Mental Health Complaints Commission (MHCC). In arguing for this, the Royal Commission did note some shortcomings,[iii] but I don’t think it went nearly far enough.
Having been involved at the MHCC handling complex complaints and later on the Advisory Council for five years, I was concerned that if the agency's shortcomings weren’t articulated, we risked repeating them in the MHWC.
Therefore, I set about researching and detailing the shortcomings of the MHCC and solutions for the new MHWC. I wrote about:
six areas that the MHCC and the Office of the Chief Psychiatrist could improve on,[iv]
how human rights could be better operationalised into the MHCC’s decision-making,[v]
how the MHCC and future MHWC could develop more sophisticated models of understanding and responding to the services they regulate,[vi] and
how the new MHWC could embed restorative justice principles into their work.[vii]
With the passing of the Mental Health and Wellbeing Act 2022 (Vic), the Victorian Government will be feverishly working to create the new MHWC. With the above evidence – and further work due soon[viii] - it may be time to reflect on the work ahead of the Victorian Government and the MHWC. I will reflect on these in the form of questions, as they are as yet unanswered.
Q1: Will appointments meet the vision?[ix]
The Victorian Government is in the process of selecting Commissioners for the new MHWC. The functions of the Commission (section 415) are incredibly broad, meaning the Commissioners will need to bring significant expertise across a range of areas. These include:
consumer leadership,
stigma research and advocacy,
regulatory practice,
complaints resolution,
monitoring and evaluation,
human rights and mental health law, and
public policy.
And those are just the technical areas, not the individual skills.
One of the most significant challenges is whether beneficiaries (consumers, carers and the community) and those it regulates (mental health services and government) see the MHWC as a competent leader. Therefore appointments – which include a Chair Commissioner and three other commissioners (with at least one being a consumer and one being a carer) – will need to show a strong connection to the consumer[x] community and the carer to the carer community.
Understandably, they will also need to work effectively as a unit, with crucial questions about the sharing and delegation of powers.
Q2: Will the MHWC be a credible enforcement agency?
Credible enforcement is crucial in regulation, with a failure to signify a willingness to use powers (selectively and judiciously), usually leading to widespread non-compliance with legal obligations.[xv] The current MHCC lacks credibility in the eyes of mental health consumers. Examples of this perception come from:
the peak body,[xi]
consumers who had accessed Victoria Legal Aid,[xii]
those who were surveyed by the MHCC (information obtained via FOI),[xiii] and
those who went to the media.[xiv]
These perceptions match reality. In the eight years of operation, the MHCC has had 12 000 complaints (awaiting data from last financial year), and never issued a single compliance notice. Evidence obtained under FOI also revealed that the MHCC failed to act on regular non-compliance by services such as South West Healthcare. Accompanying this regulatory coma has been widespread breaches of human rights throughout the system.[xvi]
The new MHWC will need to build trust with the agencies it regulates while signifying a different and more robust approach to regulating systems. This need reinforces the importance of strong Commissioners with a connection to the consumer movement (to remind them of the necessity of intervention) and strong regulatory knowledge (to ensure they have the competencies to intervene).
Q3: Will the MHWC be a complaints agency, or a regulator?
The MHCC has failed because it has not seen itself as a regulator. Regulators and regulation can mean different things,[xvii] but here refers to a responsible agency empowered to address things that matter to a sector or community. In mental health, that means a regulator empowered by law to ensure high-quality mental health services consistent with human rights (in addition to its other functions).
Because the MHCC has not envisioned itself as a regulatory agency, they can’t see the forest for the trees: they detach individual complaints from the broader systems trend (like human rights breaches), meaning they don’t use complaints resolution to meet broader system issues (like use their powers visibly to deter human rights breaches). While the regulator doth protest too much that it is doing these things, regulatory inaction during widespread breaches suggests otherwise.
If the new MHWC does envision itself as a regulator, it will need to consider how it will do so. Friel and I have developed a possible framework (with a more comprehensive set of indicators), but the MHWC may wish to devise its own.
Figure 1 - A Human Rights and Regulatory Framework, forthcoming paper Katterl & Friel, 2023.
Q4: Agenda setting and priorities
The MHWC has an enormous set of functions, which risk setting it up to fail. The announced funding appears inadequate to meet the long list of demands, which include regulatory oversight of services, stigma reduction and lived experience leadership development. This list leaves out the biggest function, systems monitoring, which will include oversight of the system, government, and whether it is implementing the Royal Commission’s vision with fidelity, and keeping to the new Mental Health and Wellbeing Outcomes and Performance Framework.[xviii]
This agenda suggests several challenges. First, the Commissioners and MHWC will need to be across all elements of the reform agenda to know where their points of high impact are. Second, the MHWC will need to work effectively with partners to reduce their load and enhance their effectiveness. Third, they will need to learn the lessons from the last MHCC and the interstate counterparts (who don’t have complaints/regulatory functions but have systems monitoring functions) about how they have managed their work. Fourthly, the MHWC will need to have forums where consumers, carers and civil society are able to communicate the issues happening in the system, and where they can partner and delegate.
Q5: Courage or capture?
The new MHWC will, like the MHCC, face risks of being responsive to services and government without failing in their duty to consumers as ultimate (or primary) beneficiaries. In regulatory terms, the MHWC will face risks of “capture” – coming to serve the system and government’s ends rather than just consumers (and, to a lesser but significant extent, carers).[xix]
While some might note that the system and consumer interests are often the same, the distribution of resources, widespread human rights breaches, and resistance from (some) clinicians to change[xx] all suggest that there are points of significant tension.
The new MHWC will need to manage this. Equally important though, is that civil society will need to do a better job of engaging with the regulator privately and where necessary, criticise them publicly. The scale of breaches may not have been as great were there more robust private and public conversations.
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These are not at all the only questions, but they are the ones that burn in my mind as I watch this recommendation unfold. I’m yet to see signs of willingness to address them, but it's not too late.
References
[i] Royal Commission into Victoria’s Mental Health System, Royal Commission into Victoria’s Mental Health System, Final Report, Summary and Recommendations (No Parliamentary Paper no. 202, Session 2018-2021, 2021) <https://finalreport.rcvmhs.vic.gov.au/>.
[ii] This was in addition to 9 recommendations from the interim report: Royal Commission into Victoria’s Mental Health System, ‘Royal Commission into Victoria’s Mental Health System: Interim Report’.
[iii] Royal Commission into Victoria’s Mental Health System, Royal Commission into Victoria’s Mental Health System, Volume 4: The Fundamentals for Enduring Reform (State of Victoria, 2021) 263 <https://finalreport.rcvmhs.vic.gov.au/download-report/>.
[iv] Simon Katterl, ‘Regulatory Oversight, Mental Health and Human Rights’ (2021) 46(2) Alternative Law Journal 149.
[v] Simon Katterl and 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.
[vi] Simon Katterl, ‘The Importance of Motivational Postures to Mental Health Regulators: Lessons for Victoria’s Mental Health System in Reducing the Use of Force’ [2021] Australasian Psychiatry 10398562211038912.
[vii] Simon Katterl, ‘Preventing and Responding to Harm: Restorative and Responsive Regulation in Victoria, Australia’ (2022) Early View Journal of Social Issues.
[viii] Simon Katterl and Sharon Friel, ‘Regulating Rights: Developing a Human Rights and Mental Health Regulatory Framework’ in Kay Wilson, Yvette Maker and Piers Gooding (eds), The Future of Mental Health, Disability and Criminal Law (Routledge, 2023).
[ix] Conflict of Interest note: I applied for a Commissioner role but I was unsuccessful.
[x] VMIAC (with my input) made this case: Victorian Mental Illness Awareness Council, Response to Royal Commission: Issues Affecting Consumers Labelled with “serious and Persistent Mental Illness" (2020) 31–32 <https://www.vmiac.org.au/wp-content/uploads/Response-to-Royal-Commission-request-.pdf>.
[xi] Victorian Mental Illness Awareness Council (n 10).
[xii] Victoria Legal Aid, Your Story, Your Say: Consumers’ Priority Issues and Solutions for the Royal Commission into Victoria’s Mental Health System (Victoria Legal Aid, 2020) <https://www.legalaid.vic.gov.au/sites/www.legalaid.vic.gov.au/files/vla-your-story-your-say-report.pdf>.
[xiii] ORIMA Research, Mental Health Complaints Commissioner: 2020 Stakeholder Feedback Surveys (ORIMA Research, June 2020) <https://static1.squarespace.com/static/6004b9776f0b7e66aaa48c0a/t/62de68254082dc1fe6f3714c/1658742835486/Orima+report+2020+re+feedback+surveys.pdf>.
[xiv] Adeshola Ore, ‘“You Don’t Have a Choice”: Victoria’s Mental Health Regulator Criticised over Complaints Handling’, The Guardian (online, 28 May 2022) <https://www.theguardian.com/society/2022/may/29/you-dont-have-a-choice-victorias-mental-health-regulator-criticised-over-complaints-handling> (‘“You Don’t Have a Choice”’).
[xv] See the regulation Bible: Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, USA, 1992).
[xvi] Chris Maylea et al, ‘Consumers’ Experiences of Rights-Based Mental Health Laws: Lessons from Victoria, Australia’ (2021) 78 International Journal of Law and Psychiatry <https://doi.org/10.1016/j.ijlp.2021.101737.>.
[xvii] For a review, see: Robert Baldwin, Martin Cave and Martin Lodge, Understanding Regulation: Theory, Strategy, and Practice (Oxford University Press on Demand, 2012); Arie Freiberg, Regulation in Australia (Federation Press, 2017).
[xviii] Australia Department of Health. Victoria, ‘Recommendation 1’ 1 <https://www.health.vic.gov.au/mental-health-reform/recommendation-1>.
[xix] Daniel Carpenter and David A Moss, Preventing Regulatory Capture: Special Interest Influence and How to Limit It (Cambridge University Press, 2013); Ian Ayres and John Braithwaite, ‘Tripartism: Regulatory Capture and Empowerment’ (1991) 16(3) Law & Social Inquiry 435.
[xx] Russ Scott and Steve Prowacki, ‘Insight and Capacity to Consent to Electroconvulsive Therapy’ (2019) 27(5) Australasian Psychiatry 428; For a reflection from a prominent psychiatrist on their profession’s lack of regard for the law, see: Christopher Ryan, ‘Our Duty to Know and Understand the Law’ (2018) 26(5) Australasian Psychiatry 453; Indigo Daya et al, ‘Defensive Rhetoric in Psychiatry: An Obstacle to Health and Human Rights’ (2020) 7(3) The Lancet Psychiatry 231; Simon Katterl, ‘Criticism of the Mental Health System Should Not Be Equated with Scientology’, Simon Katterl Consulting (7 June 2021) <https://www.simonkatterlconsulting.com/writing/criticism-of-the-mental-health-system-should-not-be-equated-with-scientology>.
