Expertise in human rights and law helps transform mental health care

RMIT’s Professor Penelope Weller is a senior legal academic whose research has helped tackle Victoria’s failing mental health system and introduce a rights-based focus for reform and services.

Transforming mental health care with a human rights focus

RMIT’s Professor Penelope Weller is a senior legal academic whose research has helped tackle Victoria’s failing mental health system and introduce a rights-based focus for reform and services.

Her extensive expertise in human rights and socio-legal research continues to inform efforts to transform mental health care in Australia and internationally.

Urgent need for mental health care reform

The final report of the 2021 Royal Commission into Victoria’s Mental Health System found that while almost half of Victorians will experience mental illness during their life, the state’s mental health system was ‘broken.’

Weller said the system often failed to intervene, or attempted interventions either failed or compounded the person’s issues.

“The Victorian government called the Royal Commission in 2018 in response to growing awareness that the mental health system was crisis-driven, inequitable, unsafe and over reliant on coerced treatment,” said Weller.

“Too often the system failed to deliver recognised best practice – respect for autonomy, respect for family, trauma-informed care, recovery-oriented practice, and access to peer support. Too often the system caused harm,” she said.

Widespread issues included:

a lack of supported decision-making principles and practices, where individuals could make decisions and have their preferences communicated and respected.
inaccessible services characterised by a reactive system mostly operating in crisis or emergency mode.
a fragmented and complex system based largely in hospitals rather than the community.
consumers having their rights breached by compulsory treatment and use of seclusion and restraint.

The Royal Commission conducted a system-wide, evidence-based analysis of 12,500 submissions to address these issues.

Royal Commission sets path to transform Victoria’s mental health system

Weller’s extensive research over many years and strong focus on human rights and mental health reform led to her being invited for a witness statement to the Royal Commission. She was also part of the Commission’s human rights working party. In her detailed witness statement, Weller’s evidence and recommendations drew from many aspects of relevant legislation including international human rights law, the International Covenant on Economic Social and Cultural Rights, the Convention on the Rights of Persons with Disabilities, and the Charter of Human Rights and Responsibilities.

Key recommendations from Weller included:

adopting a human rights approach and framework that gives full recognition to the right to health in international human rights law.
forming a task force or research hub dedicated to identifying and promoting the right to the health obligations under international law and the Charter.
establishing robust governance structures that are empowered to actively drive change and a system culture that is “engaged with human rights, acknowledges health justice and is cognisant of the legal determinants of health.” This body would also have strong representation from those with lived experience and a mandate to support the inclusion of such people at all levels of policy development and service provision.
establishing justice and health partnerships that would entail legal services located in mental health facilities.

Impact of research and expert knowledge following the Royal Commission

The Royal Commission’s final report cited Weller’s research, submission and working party comments, particularly with respect to law reform and governance.

The Victorian Government accepted all 160 recommendations from the Royal Commission and drafted new mental health and wellbeing legislation to replace the former Mental Health Act 2014. The Mental Health and Wellbeing Act 2022 (Vic) was passed by Parliament and will come into effect in mid-2023.

Weller said the transformation stemming from the Royal Commission will bring respect for human rights to the centre of mental health care in Victoria and noted that the human rights approach will need a sustained commitment from the community.

One of the most significant recommendations is that the primary objective of the legislation will be to achieve the highest attainable standard of mental health and wellbeing for the people of Victoria.

- Penelope Weller

“The obligation falls on all of us to ensure that human rights continue to shape the coming reforms and we need to create a dedicated open dialogue and mental health and human rights,” she said.

In a 2021 panel presentation to the United Nations Human Rights Council, she reiterated that legislative reform, while essential, cannot alone drive system change.

“Transformation of mental health systems must be built on respect for human rights, consensus, collaboration and compassion,” said Weller.

“The Royal Commission has laid the foundations – and challenges Victorians to work together to build a system where human rights can flourish,” she said.

Further research influencing legislative reform and practice

Strengthening Victoria’s mental health advocacy service

Weller was part of an RMIT-based team that undertook a lived-experience consultation and evaluation study of the state’s Independent Mental Health Advocacy (IMHA) for Victoria Legal Aid.

Working with colleagues including Dr Chris Maylea (now at La Trobe University), the team examined whether the IMHA service provided ‘effective, efficient, and sustainable non-legal advocacy for consumers on, or at risk of being placed on, compulsory treatment orders.’

The team also spoke with the participants including consumers, mental health professionals, mental health lawyers, IMHA advocates and staff and broader sector stakeholders about their knowledge and experiences of rights under the Mental Health Act, 2014.

Key findings from the 2017-2020 research project revealed that Victoria’s 2014 Mental Health Act was inadequate, with little influence on clinical practice in Victoria and the rights outlined were often ignored or poorly understood.

This research directly informed the subsequent Royal Commission’s recommendation for an “opt-out” advocacy service and new legislation as part of a transformed mental health system for Victoria.

National and international research influence

Weller’s expertise and research has been sought on many other occasions. This includes an invitation to submit to the ‘Ad Hoc Joint Committee on the Mental Capacity Bill’ of the Northern Ireland Assembly, and a request from the Queensland Mental Health Commission to review the Queensland Mental Health Bill 2014.

In 2022, she was also co-recipient of Australian Research Council Discovery project funding. Led by Professor Lisa Brophy at Latrobe University, the project aims to produce a comprehensive understanding of the drivers underpinning variations in the use of legal orders to enforce psychiatric treatment in the community without consent.

The findings from this project are expected to lead to innovations in law and policy, with subsequent organisational and system improvements, generating profound benefits for those affected by forced treatment.

In 2023, Weller was awarded a Visiting Fellowship by the British Academy. This program enables outstanding international scholars to be based in the UK for a period of up to six months, working with UK colleagues to develop new research collaborations and/or deepen existing partnerships.

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