Victorian Legal Aid’s Response to Implementation Proposal (August 2021)
Justice Action’s Response to Implementation Proposal (July 2021)
Department of Health’s Implementation Proposal (June 2021)
Justice Action’s Analysis of the Royal Commission Report (March 2021)
The Royal Commission Final Report (February 2021)
The Royal Commission into Victoria’s Mental Health System delivered its final report on 3 February, 2021. The report included 65 recommendations in addition to the nine recommendations of the Interim Report. The Victorian Royal Commission (VRC) set out a 10-year vision for a balanced, flexible and responsive Mental Health and Wellbeing system. The new Mental Health Act orientated toward wellbeing and recovery as directed by the VRC stipulates that the Commission and its subsidiary boards include leadership of relevant professionals such as nurses, peer workers, social workers and particularly those with lived experience of the mental health care system. Critically, the hierarchy of treatment plan decision-making should not be dominated by the current establishment, rather embrace a multidisciplinary and consumer-led approach.
The Department of Health (DoH) fails to recognise that to build a strong foundation for change requires a cultural shift from its current role as the driver and gatekeeper of decision-making policies. A strong representation of commissioners with expertise and experience across multiple relevant disciplines and backgrounds, especially those with lived experience provides the impetus for cultural and systemic change. Victorian Legal Aid response (VLA) on the redesigned system further advocates for consumer leadership to be embedded in legal and cultural change. The VLA recommends that to drive reform, the DoH takes the time to plan and address these key principles for legislative change needed to support a consumer-led Mental Health and Wellbeing Act.
The release of the VRCs final report into Victoria’s Mental Health System presents a momentous opportunity for ensuring the future protection of the fundamental rights and dignity of mental health consumers. It is critical that appropriate feedback and criticism is heard by the DoH to ensure that the much needed reform accurately reflects the vision of the VRC.
An opportunity is further presented to build a strong foundation for mental healthcare reform nationwide. There is an acute need for reform in states such as New South Wales, where Forensic Community Treatment Orders (FCTOs) make up just one of the many failures of mental health care in the community and within our prison systems. The process currently underway in Victoria has the potential to serve as a blueprint for significant reform nationwide toward a compassionate, effective and equitable mental health care system. For this reason, it is imperative that the proposed Mental Health and Wellbeing Act fully embody the vision and spirit of the VRC recommendations.
Royal Commission Recommendations
Justice Action has reviewed the response from the DoH following the Victorian Royal Commission and provides a comprehensive Analysis of the Implementation of the Victorian Royal Commission. It was found that the DoH proposal extended the authority to issue temporary treatment orders to a broader range of professionals such as nurses and social workers despite the VRC recommendations to reduce and eventually eliminate the abusive practices of forced and coercive treatment in the mental health system. It is difficult to imagine how such a proposal could be made in good faith. The analysis further addresses the systemic issues present in the mental health system that impede on consumer rights and cause extended psychological impairment such as forced medication and the use of seclusion and restraint to treat people with mental health impairment, corresponding to the VRC recommendations53-56.
The section focuses on the quality and safety of mental health and wellbeing services. The VRC reports on the failings of the current mental health system with the excessive use and preference of the most ‘risk-averse’ treatment options such as seclusion, restraints and forced medication. The VRC highlights the importance of a ‘governing body accountable for overseeing, monitoring, inquiring, and reporting on system-wide quality and safety standards’. The DoH proposes the facilitation and oversight of quality and safety of mental health services by using the Mental Health and Wellbeing Tribunal’s resources to monitor and report on system-wide quality and safety.
The DoH fails to establish a strong shift toward cultural change and address the gaps in clinical mental healthcare practices by reinforcing the hierarchy ideology present in the current failing system.
The VRC advocates for the elimination of practices using seclusion and restraint totreat mental health consumers. The VRC emphasises the ‘profound, dehumansing and often long-term effects’ from the trauma and re-traumatisation of consumers subject to restrictive practices in the mental health system. The VRC urges that healthcare providers consider the harm caused to their patient before engaging in abusive practices of seclusion and restraint. The DoH has not acknowledged the need for legislative change for the immediate reduction in the use of seclusion and restraint practices. A cultural shift away from violent and inappropriate administering of restrictive practices must ensure healthcare providers are held accountable to the management of any resulting harm or trauma imposed on mental health consumers.
The VRC reports on the excessive use of compulsory treatment orders (CTOs). Compulsory treatment is where a person with mental illness is subject to forced treatment in accordance with a CTO. under the Mental Health Act 2014 (Vic). It is recommended by the Commission that the Victorian Government ‘sets targets to reduce the use and duration of compulsory treatment on a year-by-year basis’, and ‘when commissioning mental health and wellbeing services, sets expectations that they will provide non-coercive options’.
Section 4 of the released Update and Engagement paper (pp. 24-27), highlights the lack of a well-structured and systematic approach in the DoH’s proposed pathway to meet the Royal Commission’s vision of a more balanced mental health and wellbeing system. While the Victorian Government has agreed to a 10-year timeframe to eliminate restrictive practices there is no presentation of a formal framework, strict guideline or information on services and interventions to support this proposal. Explicit legislation is critical to safeguard consumers, and to protect from profit driven private entities that carry the potential to risk greater breaches. The impact of this lack of critical detail can be seen explicitly in the inadequacies of the DoH’s proposed response to the VRCs concerns of the administration of CTOs. Mechanisms for proper accountability will drive reform including the regular and uniform collection of CTO data for public recording.
The VRC recommendation ensures the promotion and protection of consumer rights through opting for the least restrictive options and increased access to legal representation, contained within the mental health system reformation. The VRC proposes a legislative provision for the new Mental Health and Wellbeing Act enabling an opt-out model of access to non-legal advocacy services for consumers subject to, or at risk of compulsory treatment. Mental health laws must be aligned with decision-making principles and practices, and to be consumer centered rather than focusing on the clinical paradigm. In section 3 of the DoH’s Update and Engagement paper (pp. 13-22) demonstrates major failures in the Department’s proposed uptake of the VRC’s recommendations. While there are laudable efforts to ensure the increased autonomy and greater involvement of mental health consumers in decision making regarding medical treatment, the proposal is forsaken by a critical lack of detail and undermined by the absence of appropriate funding for independent advisory organisations such as IMHA.
More information on Justice Action’s response can be found here.
Download the Prisoner Community Acknowledgement report for further information.