Will this time be different? Daily choices commit us to human rights

There’s an older mental health nurse working inside a psychiatric unit in regional Victoria. Let’s call her Andrea. The unit is “new”, with renovated paint, a ‘sensory modulation’ room and new outdoor areas.[1] And yet Andrea feels deep down, something is not right. It feels “same old”. The paint covers over cracks.

Andrea began working as a mental health nurse 30 years ago, and spent time working in Victoria’s ageing asylums. Believing that she was there to help, she dutifully fulfilled her role to check medications, to record people’s movements and to make assessments about people’s mental states.

When deinstitutionalisation – the process of closing the asylums and moving care into the community – came, Andrea began hearing about “human rights”. A new idea, this remained at the periphery of her thought, while she continued the medication, recording and assessments, now inside a community clinic and sometimes at a short-stay inpatient unit. She is now at the final stages of her career, hoping to share her lessons with her lessons with her workers, as a manager of a service.

A jarring conversation emerges. She hears in the news and in public forums criticisms that these processes of medicating, monitoring and assessing are tied to a broader set of “human rights violations”. Only doing what she was taught, he conversation draws, like blood, a mixture of anger, shame and confusion.

Human rights mean many things and have different focuses. They can be focused on the past, on justice and on reparations . They can also be focused on decisions in the present and the future, on prevention

.When the Victorian Government passed the Charter of Human Rights and Responsibilities Act 2006 (the Charter) it was banking on human-rights-prevention, rather than just human-rights-cure. Institutions that retrospectively deal with harm are imperfect: Courts can be inaccessible and regulators can be captured . Building human rights into the foundation of mental health systems is crucial. Rome wasn’t built in a day. It was built brick by brick, probably with heaps of “subcommittee” meetings.

Andrea as manager of her unit, attends to these decisions daily. When she is doing strategic planning with the clinical director and considering how they will fund and find staffing in her inpatient unit, whether she chooses to prioritise the old way, or senior peer workers, Aboriginal social and emotional wellbeing workers, or bicultural workers, she is making decisions in that moment, that will impact human rights in a later moment. More or less coercion or cultural safety on an inpatient ward, flows from that staffing decision.

When Andrea makes a decision with the clinical director about the continued use of locked wards, she is impacting the human rights of every consumer in that service, that day, and the next. When Andrea attends the Quality and Safety meetings to discuss complaints and quality issues, decisions are made that will impact on people’s right to be treated equally with other healthcare consumers, to have their informed consent sought to treatment across the service, to have their pronouns used correctly like is assumed for cis-gender people, to ensure that seclusion and restraint are reduced and eliminated. When monitoring handover, Andrea’s choice to frame discussions around human rights or not will have an impact on the legality and quality of care of everyone on the inpatient unit that day.

Human rights discourse necessarily focuses on accountability. It should . But the moments Andrea finds herself are opportunities. Opportunities in every moment to identify how the decisions she and her colleagues make today, will impact on human rights of consumers tomorrow.

The failure to meet these opportunities is what produces many of the human rights violations. This failure produces complaints. It produces payouts. It produces lower morale. It produces low trust between people who use and provide mental health services. When leaders, such as Andrea, who work under an unconscious autopilot system built by the system over 30 years, fail to set the tone for daily policies and practice, their staff increasingly find themselves in impossible situations.

While these situations are common, they are by no means inevitable. These situations present themselves every day, as opportunities.

The Charter details 20 human rights that must be properly considered and complied with by Andrea, every day that she goes to work.

?

That obligation, and opportunity, requires more than words: it requires evidence and action. Andrea and her colleagues should, upon inspection, be able to show how they considered relevant rights when making quality, strategy, handover, staffing and other decisions. What we know of the last 18 years of the Charter in mental health systems, is that this hasn’t occurred.

The Mental Health and Wellbeing Act 2022 (MHWA) provides another opportunity to meet the moment. Adopting similar legal tests to the Charter, the MHWA requires that mental health providers properly consider, and make all reasonable efforts to comply, with mental health principles. Like the Charter, the duty requires evidence and action.

These opportunities under the Charter and the MHWA are co-supportive. Complying with the principles supports you to comply with the Charter, and vice versa.

But Andrea and her colleagues may be left with feelings of overwhelm or of uncertainty. These are a lot of rights. There are a lot of laws. How to make sense of it all?

Simplicity and practicality are key. A model developed for the Victorian Government to meet the same MHWA and Charter obligations is built on three core steps, each containing two questions. Those three steps are: 1) Forecast; 2) Assess; and 3) Decide.

Apply these three steps to all your decisions that impact Charter rights and MHWA principles, and you will not only be better placed to meet your legal obligations, but you will govern, design and operate mental health services.[2]

Embedding human rights will mean that trans and gender diverse people have better access and experiences of your service, Aboriginal Victorians are more likely to have their needs met, and people in inpatient settings are less likely to experience force.

Done well, and done daily, Andrea and her colleagues will not be painting over cracks. Instead, along with consumers, carers and lived experience workforce members, they will be building new foundations.

But it starts every day with a choice Andrea and her colleagues face every day they step into work: will this time be different?

Notes

[1] This is a fictional person and any similarities to individuals are incidental. Similarly, this is not speaking to a specific regional mental health unit. Instead, these are common features of contemporary mental health inpatient units.

[2] I explain these steps in more detail in a public article in Australasian Psychiatry .