The solutions

The solutions for how the Commission can better protect human rights follow from how we diagnosed their current problems. These were outlined in a “Human Rights and Mental Health Regulatory Framework” that I co-authored in 2023.

Clarify their objectives

The Commission should clarify its objectives as being about human rights protection. Indicators of success on this would be:

  • Ensuring that the law reflects that this is their objective (this has been achieved in 2023)

  • Evidence of how the Commission aims to competently protect human rights through

  • Evidence in their activities, including communications (e.g. social media or communications with the sector and services), of their objectives to protect human rights.

Be responsive

The Commission should be more responsive to each service’s individual performance. It should tailor it’s activities to address amplify performance success and address performance issues in services. Indicators would include:

  • The Commission showing evidence that it thinks about the characteristics, capacities and motivations of each mental health service

  • Use a smart mix of different powers and strategies (education, social media, media, events) to address issues

  • A rational framework for promoting good practice, supporting capacity building within services and deterring willful non-compliance with legal duties.

Regulate risk

The Commission should focus its attention and resources to where the risks to human rights are the greatest. Indicators of success on this would be:

  • A framework for identifying where risks to human rights are greatest in the system

  • Tools to monitor those risks through existing complaints and other regulatory processes

  • Evidence that they are devoting resources to where the risks to human rights issues are the greatest.

Clearer standards

The Commission needs clearer standards. Standards about what they expect from services. And standards about how they will respond to under-performance. Indicators would include:

  • Public practice guidelines or frameworks that articulate these standards

  • The use of either prescriptive or outcomes-based standards

  • Standards that indicate how powers will and will not be used.

Credible enforcement

The Commission needs to show deliberate, transparent and robust use of powers when they are warranted. Indicators would include:

  • Evidence of how the Commission uses education and capability building (less coercive measures) to address performance issues

  • Evidence of their recommendations being implemented by services, and whether those recommendations have been effective

  • Evidence of the use of more coercive measures (e.g. investigations, undertakings and compliance notices) where less coercive measures were ineffective.

More public involvement

The Commission desperately needs to become more transparent and involve the sector in the process of regulation. Indicators would include:

  • Publishing complaints data and recommendations online in an easily accessible format

  • Ways to involve advocacy, lived experience, peak and other organisations in the regulatory process

  • Greater coordination activities amongst regulators and other organisations to protect human rights.

Balancing power

The Commission needs to address power imbalances within its processes. It also needs to aim to contribute to more balanced power overall between consumers and carers and the mental health system. Indicators of this would include:

  • An intentional framework about how the Commission understands, identifies and responds to different types, forms, and spaces where power operates in the system and in their processes

  • Measures of change at the systems level, regulatory process and service provision in power relations amongst consumers, carers and services

  • Evidence that the regulator has people in leadership roles with lived experience.