The problems
Fixing public policy problems requires a clear eyed understanding of the problem. Drawing on the research and evidence. I outline six examples of how the Commission is not working effectively.
However, a global definition of the problem that surmises these six examples can be useful. From a regulatory perspective (which is just one perspective), we can define the problems in Victoria’s mental health system as being that that…
Victoria’s Commission has many of the tools that could address this problem. But it has failed to do so. Utilising a framework from Katterl and Friel, I outline six areas where the Commission has failed below.
…Victoria’s mental health system operates with minimal regard to its legal and human rights duties.
Unclear objectives
It is important that a regulator has very clearly defined purposes. What is the problem that they have been created to intervene and address?
In Victoria, the current Commission (prior to 1 September 2023) lacked a clear statutory purpose to protect human rights. This means that complaints and the broader powers of the current Commission weren’t properly geared towards human rights compliance.
Being unresponsive
An effective regulator must respond differently to each organisation or person it is regulating. It should use the ‘carrot’ when that is warranted, and the ‘stick’ when that is (sparingly) warranted. How you determine this is by identifying the willingness and capability of each organisation your objectives as a regulator.
In Victoria, there is minimal evidence that the Commission treats excelling (leaders) or underperforming (laggards) services differently. This risks missing the opportunity to elevate good performance and intervene on consistently poor performance.
Not seeing and responding to risks
To address many problems, they need to look at “risks”. Specifically, they need to identify their objectives - such as compliance with human rights laws - then identify what poses the biggest risk to that goal. They then have to focus on addressing those risks. For example, with greater support for services, or greater enforcement.
In Victoria, there’s limited evidence that the current Commission thinks about this in any sophisticated way. Like the failure to be responsive, there isn’t evidence that the Commission identifies and focuses on different parts of the system that pose more risks to human rights. For example, there is no strategy to use their existing powers to better protect people during the first 72 hours of an admission, where human rights breaches are the greatest.
A lack of standards
Standard-setting occurs when either the regulator or the broader government define the specific outcomes or practices they want, so that organisations and individuals know what to work towards.
In Victoria, the Commission didn’t provide clear standard setting in how it went about it’s work. It developed ‘complaint stories’, but these were so general in nature that they couldn’t be considered ‘standards’ that services or clinicians could reasonably incorporate into their practice.
A lack of credible enforcement
Any regulatory oversight agency needs to be have credibility when it comes to enforcement. Not the same as an over-eager or punitive regulator, credible enforcement refers to a sector understanding that a failure to act in good faith to address issues and follow the law will lead to enforcement.
Across nine years and over 14 000 complaints, the Commission has never issued a compliance notice to follow the law for a breach of the Mental Health Act 2014 (Vic). This has sent a clear signal to the mental health sector that human rights are not a rational priority when making decisions and organising the design and operation of services.
A lack of public involvement
Our community involvement is the heartbeat of a living democracy. Regulators such as the Commission are a crucial mechanism to protect human rights and other public goods we care about. But these roles hold significant unelected power. The question then becomes ‘who watched the watchdogs’? The community has an important role in holding regulators such as the Commission accountable.
This has been impaired by the Commission’s lack of transparency. If community involvement is the heart beat of a democracy, then access to information about the operation of our democratic institutions is the lifeblood and oxygen that keeps it pumping. The Commission had for years resisted the release of data on service-level performance, until it was obtained under freedom of information. Now, it is going to court to fight against your right to know what recommendations it makes to mental health services. This only makes our mental health system less transparent, and less likely to improve.
Failing to address power imbalances
We all expect a fair playing field when it comes to justice. Consumers, and to a lesser degree families and carers, are at a significant power disadvantage when they make complaints to the Commission. Consumers are already discredited by discriminatory assumptions around distress and ‘mental illness’, meaning their memory and arguments are deemed less worthy. They have evidentiary disadvantages, with much of the evidence for complaints resting on clinical notes, which rarely document the commonly-occurring human rights breaches. They also have less information about how the Commission and mental health services operate.
There’s minimal evidence - both in the Commission’s processes and the outcomes of its complaints - that it proactively addresses these power imbalances. More broadly, it does not seem to have shifted the operations of power within the mental health system that many would have hoped for when it began in July 2014.