Preventative powers for regulators
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 enhanced own-motion powers are an important addition, however a rights-abiding system will require a regulator who can intervene to prevent breaches of the law. There are two pragmatic steps to achieve this is. Where the Mental Health and Wellbeing Commission (MHWC) believes that there is a reasonable risk of a breach of the MHWA, they have the power to 1) compel information from a service about how they plan to comply with the MHWA; 2) issue a warning notice that a decision-maker risks breaching the MHWA.
If the MHWC has a role to ensure compliance with the MHWA and protect consumer as well as family and carer rights, it must be given the tools to do so. There are different approaches to understanding compliance,[i] but in this context it is useful to understand compliance as being conformity with a rule, policy, specification or law.
In order to achieve compliance, the MHWC powers need enhancing. Consumers and others have raised that MHCC requires powers to prevent harms, rather than operate solely in a reactive-based manner through complaints.[ii] The own-motion powers signalled in the Royal Commission’s recommendations and the discussion paper are important. However, they will not deal with the daily instances of non-compliance that emerge from consumers and carers daily complaints to the MHCC (soon to be MHWC). Oral or telephone complaints often identify a high risk for imminent breaches of the MHA14 (such as a failure to obtain informed consent). However the MHCC has few mechanisms beyond a referral back to the service, with an assurance that the consumer can make a written complaint after the breach has occurred. Consumers have expressed low confidence in this process.[iii] As one consumer reported to the Royal Commission:
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?[iv]
Preventative powers can assist in this process. The first is a requirement to provide information. That is, the MHWC, if it has concerns regarding imminent breaches of the MHWA, can require information from a mental health service about how they plan to comply with the MHWA in a person’s assessment, treatment or care. A second is the ability of the MHWC to issue warning or prohibition notices, defining conduct which would carries risks of being unlawful, or a failure to undertake particular conduct risks being unlawful.
Such notices are common for regulators,[v] and enable the MHWC to prevent imminent harms, such as unlawful treatment decision-making or use of restrictive practices in the absence of less restrictive alternatives – both of which have been identified as key issues in the sector. They also have an educative function, in requiring services to reflect on and explain their behaviour, regarding their obligations under the MHWA.
[i] Christine Parker and Vibeke Lehmann Nielsen, ‘Compliance: 14 Questions’ [2017] Regulatory theory: Foundations and applications 217.
[ii] Simon Katterl, ‘Regulatory Oversight, Mental Health and Human Rights’ (2021) 46(2) Alternative Law Journal 149; 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>.
[iii] Chris Maylea, Witness Statement 31 March 2020 to the Royal Commission into Victoria’s Mental Health System (2020) [22]-[24] <https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-rcvmhs.files/1715/9114/2722/Maylea_Chris.pdf>.
[iv] Victoria Legal Aid (n 2) 31.
[v] Arie Freiberg, Regulation in Australia (Federation Press, 2017) 402–405.
