A Human Rights and Mental Health Regulatory Framework
On 6 June 2025 the Mental Health and Wellbeing Commission announced something advocates, clinicians and people with lived experience have called for close to a decade: it utilised the powers granted to it by Parliament. The Mental Health Complaints Commission (2014-2023) and the Mental Health and Wellbeing Commission (2023-Present) [I use the word “Commission” to refer to both] have had largely the same powers to monitor and enforce standards through complaints in Victoria. A great deal of evidence came that has raised questions about the Commission’s performance from 2014 until present.
In 2023 Professor Sharon Friel and I published a Human Rights and Mental Health Regulatory Framework (call it the HRMHRF [like hermherf] - it will catch on!) [1] to demonstrate what effective complaints management can look like in closed mental health settings. We then applied the HRMHRF to the Commission’s performance on complaints management to identify areas where improvement was needed. This article, alongside others have have been written [2], were good faith (and unfunded) attempts to support the Commission to improve its performance. With the Commission’s announcement, it is timely to look at what the HRMHRF said and how it puts these developments in context.
The Need for Better Regulation in Mental Health
In Australia, all states and territories permit compulsory mental health treatment, including restrictive practices like seclusion and restraint. These practices have faced international criticism for conflicting with human rights law, being counter-therapeutic, and making individuals vulnerable to abuse. Governments often argue that safeguards and regulatory oversight protect against these issues. However, there is a recognised need for independent mental health commissions or complaints authorities to investigate complaints and provide effective oversight of clinical mental health settings.
Victoria serves as a key example. Despite introducing new mental health laws in 2014, which included safeguards for consumer rights, the system failed to embed human rights effectively. This resulted in frequent breaches of the Mental Health Act 2014, with safeguards often ignored and rights becoming "illusory" [3]. This was reinforced by the Royal Commission into Victoria's Mental Health System in 2021 which found that human rights were regularly breached. The government has accepted recommendations for a new Mental Health and Wellbeing Act 2022 and a new regulatory oversight regime, including replacing the MHCC with a new Mental Health and Wellbeing Commission. However, it remained uncertain whether there would be any improvements in the approach to compliance.
Developing a Human Rights and Mental Health Regulatory Framework (HRMHRF)
Regulation is not well understood by many lawyers and mental health practitioners. Lawyers often view regulation as reduced to the setting and enforcement of legal standards by an authority, while mental health practitioners may see regulation as an interference with their otherwise sound practice. Regulation is much broader than this and more valuable. Arie Freiberg defines regulation as:
an intentional form of intervention by public sector actors in the economic and social activities of a target population with the aim of achieving a public policy objective or set of objectives [4]
The tools of regulation are much broader than simple standard-setting and enforcement. These include:
Economic Regulation: Using financial incentives or disincentives like taxes, subsidies, or grants to influence behaviour (e.g. a carbon tax to reduce carbon pollution).
Transactional Regulation: Focusing on contractual agreements and financial arrangements between parties to achieve regulatory goals (e.g. contractual duties on health services to deliver certain outcomes).
Authorisation as Regulation: Granting permissions through licenses, permits, or registration, often with specific conditions attached (e.g. regulating mental health care so only certain professions can prescribe medication).
Informational Regulation: Providing or requiring information disclosure to guide choices and influence behaviour (e.g. the requirement to report on seclusion and restraint data).
Behavioural Regulation: Designing interventions based on understanding human psychology to encourage desired actions (e.g. using “nudge” tools to influence practitioner behaviour).
Structural Regulation: Shaping market or industry structures to achieve regulatory objectives and outcomes (e.g. introducing a “public” option into a market to improve the performance of the system).
Legal Regulation (Command and Control): Direct legal mandates, prohibitions, and sanctions enforced through legislation (introducing laws backed by sanctions).
While the Commission has at its hands legal regulation, it also has the ability to shape service provider behaviour through informational regulation and behavioural regulation, while advocating to government to utilise other methods.
The HRMHRF was developed not to utilise all of these tools - that is a whole of government task - but instead to guide new regulatory/complaints bodies and to evaluate their performance. The core question is how specialist mental health regulators with complaints and systemic functions can best protect human rights in clinical mental health services. The framework is built on a rapid review of literature on responsive regulation and risk-based regulation, and theories of power. These were selected as the most well established and most relevant to mental health regulation, and are explored next.
Key Concepts in Responsive Regulation
Responsive regulation is a flexible approach to controlling how organisations behave. Instead of a one-size-fits-all rulebook, it suggests that regulators should adapt their approach based on the specific situation and the willingness of the regulated organisation to comply. This approach also stresses the importance of involving various interested parties in the regulatory process.
There are several core ideas within responsive regulation:
Contingency and Flexibility: Imagine a mental health service that has a few minor complaints. A responsive regulator wouldn't immediately impose harsh penalties. Instead, they would use a variety of methods, like offering education or advice, to help the service improve. The idea is to be flexible and adapt to the unique circumstances of each service, rather than using the same approach for everyone. For example, if a service is genuinely trying to improve, the regulator might offer support and guidance. If a service is resistant or deliberately ignoring issues, the regulator would then consider more serious actions. It's about tailoring the response to fit the situation and encouraging compliance through understanding the organisation's "motivational postures" – how they feel about and want to position themselves in relation to the regulator or the law.
Enforcement Hierarchy (or "Pyramid of Sanctions"): Think of this like a pyramid. At the wide base, the regulator uses less forceful tools, like education or offering to help improve practices. This assumes that most organisations will want to comply voluntarily. If these softer approaches don't work, the regulator moves up the pyramid to more interventionist methods, like investigations or issuing formal notices. At the very top, the narrow point, are the most severe actions, such as imposing sanctions. The goal is to choose the least restrictive intervention that will still achieve compliance. Good regulators have a clear understanding of when and why to use different levels of enforcement, and it should be visible in its regulatory actions.
Tripartism: This concept is about ensuring that more than just the regulator and the regulated organisation are involved in the process. It involves including "third parties" to help hold the regulator accountable and to prevent "regulatory capture." Regulatory capture happens when the regulator becomes too close to the industry it regulates, potentially leading to decisions that favour the industry rather than the public interest. Tripartism aims to open up regulatory decisions to public scrutiny, for example, by making regulatory activities transparent. A key aspect of tripartism in mental health is involving people with lived experience – individuals who have directly experienced mental health services as consumers or carers. These individuals can provide invaluable insights and even act as a form of "third-party regulator" by advocating for their rights and influencing service quality. Complaints processes are another way to include third parties. Disclosing information about how the regulator handles complaints enables third parties to monitor whether the regulator is performing effectively.
Key Concepts in Risk-Based Regulation
Risk-based regulation is another key plank of the HRMHRF. Risk-based regulation is about making decisions and allocating resources based on assessing the potential dangers or threats to a regulator's goals. It helps regulators focus their limited resources on the most important issues.
Here are its central elements:
Clarify Regulatory Objectives: Before anything else, a regulator needs to know what it's trying to protect. In mental health, this often means protecting human rights. These objectives act like a "north star," guiding all of the regulator's daily operations. Without clear objectives, it's hard to know what risks to focus on.
Identify Risks to Those Objectives: Once the objectives are clear, the regulator needs to figure out what could go wrong. This involves looking at past issues, current problems, and potential future threats. For example, a risk in mental health could be the use of compulsory treatment that harms a person's rights. The regulator needs to understand not only what the risks are, but also how much risk they are willing to accept, as it's impossible to eliminate all risks.
Set Standards: To manage risks, regulators need to establish clear expectations for what is acceptable and unacceptable. These are the "standards" that mental health services are expected to meet. For instance, this could involve publishing guidelines on how services should provide safe and quality care in line with legal requirements. These standards allow both the services and others to assess how well risks are being managed.
Assign Resources for Monitoring and Enforcement: Once risks are identified and standards are set, regulators must decide where to put their efforts and resources. The areas with the highest risk to the regulatory objectives should receive the most attention. This means prioritizing inspections, investigations, and other enforcement actions where they are most needed. For example, if data shows certain services have a high number of complaints or poor practices, the regulator would dedicate more resources to monitoring and intervening in those services.
Theories of Power
Understanding power is essential in any regulatory context, especially in mental health. Power isn't just about one person or group dominating another; it can also be about working together or removing barriers to individuals exercising their power.
In health and mental health systems, power imbalances are very common. For example, clinicians often hold more power than consumers, and this imbalance is sometimes reinforced by laws that permit compulsory treatment. These power differences can also be seen in how the mental health system is designed and operated.
To address these imbalances, various strategies are employed. These include giving people with lived experience greater leadership roles within mental health systems and shifting from top-down management to more collaborative approaches, often called "co-design" or "co-production". The goal is to share power and include mental health consumers in all stages of decision-making that affect them.
Power also influences how regulation itself works or fails. If there are significant power imbalances or rigid hierarchies, it can make it difficult for citizens to interact effectively with regulators, especially during complaints processes. Therefore, regulators need to actively work to correct these power imbalances. Ignoring them can even lead to regulatory capture, where the regulator becomes too influenced by the very organisations they are supposed to regulate.
The Human Rights and Mental Health Regulatory Framework (HRMHRF) Principles
The purpose of the HRMHRF is to integrate the lessons from these regulatory theories to bring them to mental health settings. The HRMHRF combines these ideas into seven core principles for effective regulatory practice, aiming to protect and promote human rights in mental health settings:
Clear Objectives (Human Rights Protection): The regulator's main goals must explicitly state a focus on protecting and promoting human rights.
Be Responsive: The regulator should adapt its methods based on the specific circumstances and willingness of mental health services to comply with human rights.
Regulate Risk: Resources and interventions should be directed towards areas or services that pose the greatest risk to human rights.
Set Effective Standards: Clear and measurable standards, both prescriptive (telling services what to do) and outcome-focused (what results to achieve), should be in place to ensure human rights compliance.
Judicious Enforcement: The regulator must use enforcement measures—from education to investigations and sanctions—deliberately, transparently, and effectively, escalating interventions when needed.
Tripartism: Third parties, especially people with lived experience, must be actively involved in the regulatory process to ensure accountability and diverse perspectives.
Balance Power: The regulator needs to identify and actively address power imbalances among complainants, mental health services, and the regulator itself.
Application of the Framework to the MHCC
After we developed the framework, the the chapter assessed the Commission against these seven principles. In summary below:
Clear objectives
The Commission’s previous legislative objectives did not explicitly focus on human rights protection, which weakened its ability to enforce them.
Be responsive
The Commission was not a truly responsive regulator, as it didn’t demonstrate a clear understanding of varied service characteristics and tends to handle complaints in isolation from systemic issues.
Regulate risk
Its approach to risk-based regulation was limited; there was no clear strategy for allocating resources based on human rights risks, and initiatives like encouraging direct complaints to services might even increase consumers’ risks of rights breaches.
Set effective standards
Regarding standards, the MHCC provides some positive examples, but these are more illustrative of how standards are applied rather than clear standards themselves.
Judicious enforcement
Critically, the Commission lacked a clear strategy and commitment to enforcement. Despite a large volume of complaints, it has rarely used compliance notices or enforceable undertakings. This under-enforcement contributes to a perceived lack of effectiveness among consumers.
Tripartism
While the MHCC has elements of tripartism through its Lived Experience Strategy and Advisory Council, there's little evidence of genuine third-party involvement in critical regulatory processes like complaints and investigations.
Balancing power
Finally, the MHCC's approach to balancing power is incomplete. Although it acknowledges power imbalances and includes people with lived experience in leadership, its public documents don't specify how different types of power operate or how changes in power imbalances will be measured. Crucially, it lacks a commitment to enforcing consumer rights as a primary mechanism to address power imbalances, leading consumers to view it as a "toothless tiger". There is also a lack of clarity on mechanisms to prevent regulatory capture.
Conclusion
The chapter we developed concluded that the biggest levers to advancing human rights were aligning laws with international human rights and improving actual practice. The HRMHRF provided a framework for regulators operating within current and future environments, emphasising responsive and risk-based approaches and an understanding of power dynamics. The assessment of the Commission highlighted positive signs in standard-setting and some lived experience inclusion, but these are undermined by a lack of statutory objectives for human rights protection, unclear regulatory goals, and insufficient enforcement. For mental health services to truly improve and human rights to be realised, changes in the culture and practices of mental health regulators are essential.
References
[1] Katterl, Simon and Sharon Friel, ‘Regulating Rights: Developing a Human Rights and Mental Health Regulatory Framework’ in Kay Wilson, Yvette Maker and Piers Gooding (eds), The Future of Mental Health, Disability and Criminal Law (Routledge, 2023) 267
[2] Katterl, Simon, ‘From Principles to Practice: Clarifying New Obligations under Victoria’s Mental Health and Wellbeing Act 2022’ [2024] Australasian Psychiatry 10398562241251595; Katterl, Simon, ‘Preventing and Responding to Harm: Restorative and Responsive Regulation in Victoria, Australia’ (2022) Early View Journal of Social Issues; Katterl, Simon, ‘Regulatory Oversight, Mental Health and Human Rights’ (2021) 46(2) Alternative Law Journal 149; Katterl, Simon, ‘Resolving Mental Health Treatment Disputes in the Shadow of the Law: The Victorian Experience’ (2023) 2023(September) Australian Dispute Resolution Bulletin 20.
[3] Maylea, Chris et al, ‘Consumers’ Experiences of Rights-Based Mental Health Laws: Lessons from Victoria, Australia’ (2021) 78 International Journal of law and Psychiatry 101737.
[4] Freiberg, Arie, Regulation in Australia (Federation Press, 2017).
