Making it fit: ensuring our regulatory infrastructure achieves the Royal Commission’s ambitions
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 Victorian Government’s discussion paper has many positive elements to it. The introduction of at least one Consumer Commissioner in the Mental Health and Wellbeing Commission (MHWC), the inclusion of own motion powers is also valuable.
What I hope to contribute to is suggesting a more comprehensive framework that coheres the various goals set by the Royal Commission: improving overall standards of care, reducing compulsory treatment, eliminating restrictive practices, compliance with minimum standards (outlined in the commissioning of services chapter), and ensuring greater co-design and partnership with consumers, as well as families, supporters and carers.
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An effective Mental Health and Wellbeing Act, like any embedded legislative system, will require all parts to mutually support one another. That is, there should be a rational connection between the objectives, principles and key provisions, both in their design, but also in the regulatory and policy infrastructure that enables legislation to take effect. While the goals of the mental health principles, compulsory treatment targets and restrictive practices targets may differ in detail, they broadly reflect an intention to reduce the use of force and maximise consumer rights.
Because these key elements of the MHWA are co-dependent on one another, they should be regulated together under the same infrastructure. However, the discussion paper does not clearly articulate the rational connection between the broad vision, the principles, compulsory treatment as a last resort, and eliminated restrictive practices, and an effective and efficient regulatory regime. Beyond the issues with the compliance test for principles in recommendation 4 (where I note the test should be stronger), the principles are only to be publicly reported in an annual report. Meanwhile, there is not a clear goal, standard or reporting mechanism for compulsory treatment. Furthermore, there will be systems-wide targets set by the Chief Mental Health and Wellbeing Officer on restrictive practices, but it is not clear what local strategies will be used within services.
The approach in the discussion paper suffers in some respects. Things which are rationally connected are not cohered into a system of mutually supporting structures. There will be significant regulatory burden for services reporting to different agencies (Chief Psychiatrist for restrictive practices, local complaints to the MHWC, data to the Department of Health). Moreover, the setting of state-wide targets, while important, if done without sufficient buy-in and localisation, will likely lead to resistance from services on the basis that state the Victorian Government would appear not understand the unique circumstances of their service or community.[i] Moreover, a failure to bring these three issues together – principles, compulsory treatment and restrictive practices – means that a reduction in one indicator, such as the use of seclusion, may come at the expense of another, such as compulsory treatment or informal coercion of voluntary consumers. Underpinning successful reduction of the use of both, would be adherence to the mental health principles. It’s all connected, dude.
In order for services to adhere to the mental health principles, progressively eliminate restrictive practices and ensure that compulsory treatment is a last resort, there will need to be a sophisticated regulatory infrastructure to drive systems-wide change, with limited resources, while acknowledging the unique enablers and barriers to change within services. The Gender Equality Act 2020 (Vic) (GEA2020) provides a template for how this regulatory infrastructure can be applied within a defined regulatory space with public authorities. Applying learnings from the GEA2020, a simplified mechanism can be granted to the MHWC to regulate action plans submitted by designated mental health services authorised to use compulsory treatment and restrictive practices under the MHWA. Using the principles of the MHWA and any other policy instruments developed by the MHWC or the Chief Mental Health and Wellbeing Officer, designated mental health services may submit an action plan that outlines:
the current use of compulsory treatment and restrictive practices against state-wide targets as well as current indicators of compliance and non-compliance with the principles, and
any targets that have been set by the service and the strategy, and
any internal and external barriers and enablers to achieving state-wide and service-identified targets, and
activities and strategies to achieve set targets for compulsory treatment, restrictive practices and adherence to the mental health principles.
This action plan should be submitted to the MHWC as an enforceable undertaking and made public, enabling the MHWC to regulate against this action plan, in addition to the MHWA obligations. The action plan and regular progress reports should be reported publicly. Such processes cannot be argued as overly onerous. They are in fact a more efficient mechanism than disparate efforts to deal with each issue. Moreover, they are equivalent to existing obligations that all public health services are already adhering to (or should be adhering to) under the GEA2020.[ii]
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[i] Victorian Mental Illness Awareness Council, Response to Royal Commission: Issues Affecting Consumers Labelled with “serious and Persistent Mental Illness" (2020) 34 <https://www.vmiac.org.au/wp-content/uploads/Response-to-Royal-Commission-request-.pdf>; Eric Windholz, Governing through Regulation: Public Policy, Regulation and the Law (Taylor & Francis, 2017) 112; Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’ (2008) 2(2) Regulation & governance 137.
[ii] Public hospitals are defined entities under the Gender Equality Act 2020 (Vic) s 5(1). A list of defined entities is available on the Commission’s website: Commissioner for Gender Equality, ‘List of Defined Entities under the Gender Equality Act | Commission for Gender Equality in the Public Sector’ <http://www.genderequalitycommission.vic.gov.au/list-defined-entities>.
