How do you embed human rights in systems that don't recognise them?
Simon Katterl & Chris Maylea
Simon is a mental health, regulation and human rights researcher, and Chris is a senior lecturer at RMIT University.
How do you embed human rights in systems that don’t recognise them? That is the challenge facing mental health service delivery.
Emerging largely after the Second World War, human rights are essentially a retrofit to far more enduring politico-legal systems designed, in part, to secure social control. Our child protection, criminal justice and welfare and other social systems were not born of pure commitment to individual liberty and equality before the law. Instead, these systems evolved over time as trade-offs to compensate for inequality, and, while often born of good intentions, they were often fused with racist, classist and ableist ideas (1–3).
Much is the same in our mental health system. The early approaches to treatment are genuinely horrifying – bloodletting, ice baths, more physical abuse and intimidation. Modernity brought new technologies and rationalities, but at its core, the legacy of the asylum era is still present. Clinicians are still cast in law as the only legitimate decision-makers on someone’s life and their treatment. Systemic and interpersonal abuses continue. Consumers often live their lives within parameters set by a “psychiatric gaze” (4), and describe their relationship with mental health services as one suffering of “power and control” (5) and harmful treatment (6).
Human rights law offers some guidance as to how these long-standing issues can be overcome.
It is no wonder that we see international and domestic evidence of wide-scale human rights breaches in the mental health system. Examined against the Convention on the Rights of Persons with Disabilities, as Hunter Watson has done in an earlier post, mental health laws are incompatible with international human rights. But even against the requirements of existing domestic frameworks, we see regular instances of abuse (7,8) and breaches of mental health laws (9).
The question then becomes, what could a human rights compliant mental health system looks like? We see two answers to this. The first relates to international human rights law, which has been dealt with in Watson’s previous post and many others (10).
The second answer focuses more on how mental health systems can be harmonised with domestic human rights legislation. In Australia, three jurisdictions currently have designated human rights legislation: the Australian Capital Territory with the Human Rights Act 2004, Victoria with the Charter of Human Rights and Responsibilities Act 2006, and Queensland, with the Human Rights Act 2019.
Though there are some critical differences (11,12), these human rights instruments broadly follow the same “dialogue model” that gives lawmakers the most power to protect human rights and a more limited role for courts. They also allow for a “balancing” and limiting of rights, which the three jurisdictions have used to argue that current mental health laws that permit compulsory treatment do not breach human rights (contrary to international human rights law).
While this dialogue model has its issues, it does provide an opportunity to measure the performance of the mental health system against human rights.
This can be done through a systems-focused approach. What does that mean? It means identifying the structures and conditions that have maintained harmful systems and the key levers that intersect with human rights legislation that can be used for change.
In an analysis published earlier this year (13), we identified five key levers that governments could use to promote human rights within the mental health system: systems leadership, the funding of services, regulatory oversight, models of care and clinical governance arrangements, and training (see Figure 1).
Figure 1. Keeping Human Rights in Mind from (13): Katterl S, Maylea C. Keeping human rights in mind: embedding the Victorian Charter of Human Rights into the public mental health system. Australian Journal of Human Rights. 2021;1–20.
In the leadership of the mental health system, the government (via relevant Departments) must set up the key indicators that will promote human rights during care. In doing so, they demonstrate leadership and set expectations for system performance.
How services are funded matters too. Some services receive funding despite a poor track record on human rights. Human rights indicators and incentives should be built into the commissioning (funding) of mental health services.
Despite wide-spread human rights breaches, we have seen no staged increase in enforcement measures from regulators (14). Regulatory oversight that is intimately connected to human rights protection is a requirement for success.
Within services, models of care and the clinical governance arrangements often give scant consideration to human rights. More diligent internal human rights monitoring and advocacy practices are crucial.
And finally, there is an obvious and deep need for greater training and ongoing professional development, so that mental health staff members can better recognise and comply with human rights to give the care people deserve.
Addressing these things won’t eliminate some of the core tensions around involuntary mental health treatment, but it will move us in the right direction and towards ensuring that people in distress are helped rather than hurt.
About the authors
Simon Katterl is a graduate of law, international relations and psychology, with continuing studies in regulation and governance. Simon has his own personal experience of mental health issues and treatment. His primary role is as a consultant in the legal and mental health sector. Please see his website for further information.
Dr Chris Maylea is a social worker, lawyer, academic and consultant who specializes in the intersections of social work and law. He has published in areas including involuntary mental health settings, child protection, refugees and asylum seekers, and has managed mental health services. He works pro bono as a lawyer, regularly consults at state and federal levels, and teaches social work at RMIT University. Please see his researcher profile for further information.
References
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10. Maylea C, Hirsch A. The right to refuse: The Victorian mental health act 2014 and the convention on the rights of persons with disabilities. Alternative Law Journal. 2017;42(2):149–55.
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13. Katterl S, Maylea C. Keeping human rights in mind: embedding the Victorian Charter of Human Rights into the public mental health system. Australian Journal of Human Rights. 2021;1–20.
14. Katterl S. Regulatory oversight, mental health and human rights. Alternative Law Journal. 2021;46(2):149–56.
Suggested citation:
Katterl, S. & Maylea, C. (2021). 'How do you embed human rights in systems that don't recognise them'. CEMH Human Rights & Mental Health Blog. 14 Oct 2021. Available at: https://www.adelaide.edu.au/robinson-research-institute/critical-and-et… accessed].