Launch of new resources: Putting human rights at the heart
‘Put a system in place where it’s not possible to abuse someone like I have been abused? Why should I have to make a complaint after I’ve been abused?’
This call to action to the Royal Commission into Victoria’s Mental Health System stuck in my mind when the person said it to me. I spend a lot of time discussing regulation and compliance with human rights and mental health laws… but why don’t we address these issues before they begin?
That was the purpose of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter was meant to promote a dialogue amongst the judicial (courts), the executive (Departments and other public bodies) and legislative (parliament) arms of government. Central to this dialogue would be an independent public sector that, alongside the relevant Minister, consciously thought about, protected, and promoted human rights.
Section 38(1) of the Charter makes it:
‘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 duty is a significant one that, alongside other responsibilities in the Public Administration Act 2004 (Vic), ultimately improves policy to better accord with human rights. The duty to give “proper consideration” requires that a Minister, Department, or other public authority such as a public mental health service, show that it has thought about relevant human rights. That is, when making decisions that will impact human rights, the public authority must be able to prove that it has turned its mind to relevant human rights. The duty to comply with human rights means that any limitations with human rights must be justifiable according to section 7(2).
The duty to properly consider human rights had the opportunity to change the way policy was designed and implemented. Introducing the Bill to Parliament, the Attorney-General described the duty as seeking to:
‘ensure that human rights are observed in administrative practice and the development of policy within the public sector without the need for recourse to the courts . . . 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.’
Policy doesn’t get much more complex and sensitive than mental health policy. Locked wards, gender and culturally safe care, the removal of property, the incursion of bodily autonomy, privacy limitations…they all are simultaneously complex issues, while also human rights issues. The Charter could provide a path forward that didn’t resort to the lowest common denominator of care as control.
The Royal Commission found that the mental health system and the government had failed in this process. In a paper that myself and Dr Chris Maylea produced, we identified that virtually all aspects of mental health policy did not accord with this duty.
Thankfully in August 2022, the Mental Health and Wellbeing Division sought to rectify this. After being fortunate to present to the Division, they commissioned me and Kerin Leonard – former Director at the Royal Commission, head of legal at the Victorian Equal Opportunity and Human Rights Commission, and all-round well respected human rights figure – to develop resources to assist them to further embed human rights in policy design processes.
In designing these resources, we were fortunate to work with a range of Mental Health and Wellbeing Division staff who spoke about the barriers they faced to human rights-based policy, and the hopes they had for applying it in the future.
One of the key barriers to human rights-based mental health policy was the complexity of the law. The Charter has been criticised as overly cumbersome. Feeling like you’re not an expert in the law can be de-motivating and like you don’t have anything to add. This is wrong. We all have a role in promoting and protecting human rights.
That’s why we have developed the below resources.
You may find these resources helpful, but also don’t forget existing resources provided by the Victorian Equal Opportunity and Human Rights Commission.
Resource 1 - Thinking about human rights
To address this, Kerin and I tried to break the – at times – complex legal process into three key steps. These were:
First, forecast the impacts of today’s decision today on people’s human rights tomorrow. Part of this will require collaborating with people with lived experience.
Second, assess the human rights situation. This requires understanding the history of human rights issues in your specific area and whether some rights are currently lacking or limited.
Third, decide on how you are going to properly promote, comply and balance rights. Importantly, you need to record your decision somewhere.
If you take these three steps, which we detail in our guide, you will go a long way to meeting your existing legal duties.
You’ve got everything you need – policymakers and service providers – so go forth and promote human rights! Thank you to the Mental Health and Wellbeing Division for funding the project. Please reach out if you would like to discuss the framework or you would like the opportunity to embed this in your service.
I want to thank Jo Szczepanska who provided early advice on information architecture/design on the resource!
Resource 2 – Applying human rights
The second resource provides information about what individual human rights mean and how they can be relevant to work in the mental health and wellbeing system.
Often when people think about human rights in the mental health context they consider issues like compulsory treatment and restrictive practices. These practices are certainly significant limitations on human rights.
Human rights can also inform the way services are designed to be safe and accessible for Victoria’s diverse population.
They can be about privacy and having access to important information.
They can also inform decisions that promote connection to family, culture and religion.
Human rights issues are woven throughout people’s experiences of the mental health and wellbeing system.
Resource 3 – Equality checklist
The third resource is a one-page checklist to prompt thinking about the diverse needs of the Victorian community and the attributes that are protected under the Charter and the Equal Opportunity Act 2010 (Vic).
Resource 4 – Worksheet
The fourth resource is a worksheet to help people work through the human rights impacts of their work.
Resources (word, with alt-text)
These resources are available in Microsoft Word format, with alt-text included:
