Authors: Simon Katterl, Sarah Pollock, Kerry Hawkins & Michael Wright
Event: 2023 The MHS conference - Adelaide
Subject: Pursuing humanity through accountability systems
Type of resource: Conference Presentations and Papers
Abstract: In every Australian state and territory, mental health laws underpin the operation of mental health systems. These laws authorise the use of compulsory detention, treatment and restrictive practices and are justified on the basis that any use of coercion is as a last resort. They also contain safeguards that mean practice adheres to standards consistent with (rebuttable) presumptions of capacity to give and refuse informed consent, human dignity, personal recovery and culturally safe and gender-responsive care. Evidence across Australian jurisdictions has consistently suggested poor compliance with these expectations: on a daily basis mental health clinicians act unlawfully. The systems put in place to enforce compliance deliver insufficient accountability back to the people they are supposed to serve. However, all is not lost. This symposium explores what we can do to address the mental health system’s “compliance problem”. It will explore ideas about service providers and oversight bodies working relationally rather than transactionally, the importance of national and state systems to support lived experience and First Nations’ leadership, monitoring and stewardship, how regulatory oversight works and does not work, and the role of non-legal advocacy in amplifying the voices of people who are subject to coercive treatment – and how these come together to bring humanity to mental health systems. In Australia, mental health laws and regulatory systems are state and territory based. On the other hand, the Australian Government has multiple international human rights obligations (notably the UN Convention on the Rights of Persons with Disabilities) that are incompatible with these state and territory laws and practices. Kerry asks how has this discrepancy between state mental health laws and federal human rights obligations been addressed in the past, and what role could Australian Government agencies and departments play in the future to ensure all Australians have equitable access to force-free mental health systems? Relationships are the heart of what makes us human. Working relationally ensures deeper and more meaningful connections and sustained engagement. Yet our services tend to be transactional in the way they work. Michael will talk about how working relationally transforms services in ways that enhance people’s access to their human rights. Simon will highlight accountability agencies in his discussion. Accountability agencies are necessary to ensure compliance with such safeguards and minimum standards by mental health services. These can include chief psychiatrists who provide rights-based clinical leadership to the workforce, mental health tribunals that authorise and regulate the use of compulsory treatment orders, and other agencies such as ombuds and auditor generals who examine the reasonableness. An important component of these accountability agencies are health complaints authorities (HCAs). Australia’s federated system of government means there is a complex mix of overlapping complaints-based regulatory agencies, including the Australian Health Practitioners Regulation Agency and state-based HCAs . Health complaints agencies, Simon says, are an underutilised resource to address compliance with mental health laws by services. The imbalance in power relations that is created when it is lawful for one person to take away freedom of another and treat them against their wishes is significant – despite the obligations that mental health legislation places on clinicians and regardless of their intention to do no harm. Even in the best of circumstances, there is harm in forceable treatment. The WA Mental Health Act 2014 was, until recently, the only Australian legislation that gave involuntary consumers the right to an Advocate. The role of the Advocate is broad-reaching and includes powers of investigation, inquiry and complaint raising at individual and systemic levels. Sarah will give a brief overview of the role of non-legal advocacy in amplifying the voices of individual consumers and how this can contribute to service improvement and system change. She will reflect on the challenges of holding services to account in complex governance systems. Learning Objective Message: Our key message is that to make rights real, accountability is crucial. Accountability needs to be achieved in different structures (like advocacy, complaints entities and other bodies) and through ways of those bodies engaging with services (relationally and through law). Relevance: Our mental health systems will not improve without human rights, and ways to give effect to human rights.