Regulating Rights: Developing a Human Rights and Mental Health Regulatory Framework

Professor Bernadette McSherry was one of the first scholars to advocate for specialist mental health complaints agencies to regulate mental health services. In Victoria, the Mental Health Complaints Commissioner (MHCC) was created under the Mental Health Act 2014 (Vic) to meet this need. The MHCC and the Mental Health Act 2014 have been criticised for failing to meet expectations. However, such criticism has also highlighted that there is little guidance on what constitutes effective regulatory practice of clinical mental health services. This chapter responds to this lack of guidance by putting forward a Human Rights and Mental Health Regulatory Framework (HRMHRF). The HRMHRF - drawing on responsive and risk-based regulatory scholarship, as well as scholarship on power - provides seven principles for effective regulatory practice in clinical mental health settings: (1) clear objectives; (2) regulating risk; (3) being responsive; (4) effective standards; (5) judicious enforcement; (6) tripartism; and (7) balancing power. The MHCC is examined against these standards, highlighting positive signs in standard-setting and lived experience voices. However, these positive signs are overshadowed by little evidence of responsiveness, an awareness of risks, tripartism, balancing power, or attempts at judicious enforcement. Such findings are sobering but can inform the design of the regulatory body due to replace the MHCC in Victoria, the Mental Health and Wellbeing Commission (MHWC).