It’s time for an own-motion inquiry
The coming weeks reflect an inflection point in the trajectory of Victoria’s mental health system.
While the Royal Commission into Victoria’s Mental Health System offered a glimmer of hope – despite its limited scope and exclusion of Aboriginal and lived experience Commissioners – that hope is now rapidly fading.
Last week's news that the Victorian Government is seeking to undermine the Mental Health and Wellbeing Commission (MHWC) simply confirms what many of us already felt: this government cannot deliver on its promises, especially those vital to our mental wellbeing. The irony of my writing this, defending the MHWC's powers and funding, is not lost on me. As you read this, I remain locked in a legal battle against them.
The Royal Commission’s report
The Royal Commission's final report, handed down in early 2021, was met with significant fanfare. It was an important and as I wrote, imperfect one, that left many questions to be answered through government action. The Victorian Government, for its part, staked its legitimacy on this reform, repeatedly promised to implement "every single one" of its 74 recommendations.
As recently as June 2024, Mental Health Minister Ingrid Stitt stated under oath to the Yoorrook truth-telling Commission that there was "an absolute commitment to implement every single one of the recommendations". This claim rang hollow, especially given archived versions of the Victorian Government's mental health reform website were simultaneously altered to remove references to key recommendations – a fact later revealed by The Age.
A winding back of reform
We've seen the signs of political will waning for some time now. There's been the failure to transition from a police-led to a health-led response for emergency crises, the failure to establish a lived experience agency, and a distinct lack of transparency regarding the billions being raised through the mental health levy. Leading into the 2022 election, I wrote in the Age that "recommendations written are not recommendations implemented". I highlighted the need for the government to rebuild trust, especially after a report revealed politicised appointments, and stressed the crucial role of civil society and the crossbench in holding them to account.
A particularly "deadening message" for the sector was the appointment of the two existing Mental Health Complaints Commission (MHCC) commissioners to the new MHWC. Speaking not of the individuals, but of the institution they previously led, the MHCC had been a cataclysmic failure. It comprehensively failed to act on thousands of complaints of harm, betraying both the consumers and families who generously spoke up, and the system itself, which desperately needed a robust regulator. Only this month has it issued its first compliance notice, well after 18 000 complaints have been made about harm and breaches of the law.
The MHCC and now MHWC's excuse has been that its "voluntary recommendations" achieve outcomes, yet it has spent potentially over $100,000 (we can't know the exact figures because they refuse to release them) over three and a half years appealing an order to release those very recommendations by Victoria's Information Commissioner. The avoidability of this scenario should be made clear: the MHWC could have simply released this information, commissioned a small independent review to identify learnings, and used that to clearly demarcate the ‘old’ way of doing things under the MHCC from the ‘new’ way they planned to take it forward now. Individuals like myself would have said their piece and even if we did not agree, the process managed us as a political problem.
That this was cast aside and a lengthy court process - which has already caused significant harm to their standing and makes a mockery of their desperate calls for the Department to be more transparent - is bizarre.
Regulatory failures bleed into system oversight failures
This historical failure to exercise its powers on complaints now bleeds into its current failure to exercise its powers in this critical moment.
In a statement this month commenting on the proposed changes, the MHWC itself declared that "access to detailed progress on each recommendation of the Royal Commission is critical". What remains perplexing is that the Royal Commission, and Parliament itself, gave the Commission the very tools to deal with this exact situation: 'own motion' powers.
Under the Mental Health and Wellbeing Act 2022, the Commission has the power to initiate an inquiry, hold it publicly, and compel individuals like Ministers or the Premier to attend and provide documents. To this point, the incentives within our politicised public sector have encouraged the MHWC to pay deference and play small to the Victorian Government and their bureaucratic overlords (in reality, the Commission’s job is to hold them accountable). Reflecting on the Royal Commission’s underwhelming analysis in 2021 I commented that it wasn’t clear the MHWC would exercise this power:
It is not clear, however, why this [own motion] power would lead to radical change, when the previous powers had not been used.
It is not merely the failure to use the power that is of concern. It is that the MHWC has not even signalled it has considered using this power despite a reform agenda unravelling before our eyes for close to 2 years. Often it is the credible signal of an intent to use the power that would bring governments and departments to the table to provide necessary information.
A strange alignment of incentives
But the plot dynamic has shifted. There's now a rare moment of alignment: for the MHWC to save itself, it must save the mental health reforms. To protect its powers, commissioners, and functions, the MHWC must open an inquiry into the Victorian Government’s Olympic-level backsliding on mental health reform.
Such an inquiry would be public, short and targeted, focused on key recommendations and the mental health levy. Undertaking such an inquiry in a coordinated fashion, the sector would I believe support it wholeheartedly. The attention from the public would be significant, as would the political capital that would gravitate to the MHWC - something it desperately needs. The ‘theatre’ of a public inquiry is not incidental to this cause: it is essential.
There are few arenas in which the broader public’s attention can be drawn to the Royal Commission reforms. Without that attention, mental health will continue to slide down the Victorian Government’s agenda of issues, as criminal justice, budget deficits, schools and infrastructure take precedence. The act of leadership in this moment is something the sector needs and the MHWC needs to show it can deliver; not least because that is what Parliament prescribed it to do under the Mental Health and Wellbeing Act 2022.
If the MHWC were to garner that support, it becomes all the more difficult for a government to legislate and defund its demise.
There is indeed a sweet irony that this moment provides: we could all find ourselves on the same side.
Parliament has a role here
The Victorian Government will likely seek to introduce amendments - potentially from an Omnibus Bill (where they shove heaps of different amendments to different laws into one Bill) - to Parliament. As such, the challenge also turns to the opposition and crossbench. Can they thread the needle: improve the current MHWC, while avoiding playing into the hands of a government clearly looking to erase its Royal Commission promises? The path forward is simpler than it might appear: don’t pass Government legislation to disempower the Commission; instead, pass a resolution or referral to have it reviewed.
The Victorian Ombudsman is the most logical place for that review to take place. The Ombudsman has a role in reviewing complaints handling processes within public agencies, something that is significantly underwhelming within the MHWC. It also has a function to review and support good public administration, and has experience reporting on the risks of politicisation in the public sector.
If indeed some kind of change was needed to the MHWC’s legislation - and I don’t think there is - it should be done after a proper review of the problems in it, and if legislative change is the right fix.
A referral by the Legislative Council is the vehicle to achieve this.
In that addressing the problems in the MHWC is quite simple: improve it; don’t remove it.
