Treasure Jennings - Mental Health Complaints Commissioner

A message from the Commissioner regarding the use of restraints and seclusion in mental health services

The mental health impact of COVID-19 on the community has been devastating.

It has also placed extraordinary demands on an already under pressure mental health system, compounding the impacts of staff shortages and fatigue.

Despite these challenges, I have been pleased that mental health service providers, for the most part, have continued to engage constructively to seek to resolve consumer complaints and with the aim of continuously improving the provision of mental health care.

I have been concerned, however, to continue to receive complaints about the use of restrictive interventions – where people are subjected to the use of bodily restraint and seclusion – in circumstances where there may not be clear evidence that all the requirements for the use of such measures have been met. Our previous reviews and investigations of these complaints have brought about a number of changes and improvements, often through service-led acknowledgement.

The use of restrictive interventions raises significant human rights concerns and has a profound and enduring impact on consumers, and I intend to increase the use of my formal investigation powers to respond to complaints about restrictive interventions.

Even with the strong focus given by the MHCC on safeguarding rights to date, I am not satisfied that all services are consistently adhering to the requirements. We have improved our process to make these reviews more streamlined, but it is important that services place more effort on demonstrating compliance, particularly regarding the specific monitoring requirements to ensure restraints are removed and seclusion ends as soon as possible.

As Mental Health Complaints Commissioner, I work with all stakeholders to help facilitate a mental health system that meets the needs of consumers, to lift standards of service and care, to protect rights, and to empower individuals to be an active participant so they can better navigate a complex mental health system.

Restraint and seclusion can only be used in strictly limited circumstances as set out in the Mental Health Act 2014 (the Act) and are subject to the statutory safeguards and protections, but I continue to receive complaints where there is a lack of clear documentation and evidence that the requirements for the use of restrictive interventions have been adhered to.

Some of the investigations we have undertaken have found breaches of the the Act and the Charter of Human Rights and Responsibilities Act 2006, which have led to a range of recommendations that services must respond to.

I recognise that this issue is more prevalent where restraint is used in an emergency department, but, irrespective of the setting, it is not acceptable that restrictive interventions may be being used in breach of the statutory safeguards and protections in the Act, and that compliance with the legislative requirements cannot consistently be verified.

In performing our role, we undertake several approaches to lift our expectations on services to demonstrate compliance with the Mental Health Act including promoting accountability through improved reporting and disclosure of complaints data and outcomes where there is a public interest. We also promote consumer rights through a series of campaigns and empower consumers to speak-up about their experiences in the public mental health system.

We are empowered to accept, assess, facilitate and investigate complaints and seek to resolve them in a timely manner to engage and educate service providers to ensure continuous improvement for consumers, carers and families.

Overall, services have shared information with us and worked to identify issues, respond to concerns, and make changes and I have been encouraged by the general willingness of services to respond appropriately where deficiencies of care or potential non-compliance with legislative or policy frameworks have been identified.

This is a highly sensitive area and the MHCC has worked with consumers and services over a number of years to achieve positive changes, especially during the challenges of COVID-19, but we must not rest here - this focus is hoped to be the push needed to progress systemic changes.

I have written to service providers to inform them of my intention to investigate more matters where compliance in relation to the use of restraint and seclusion is in doubt, especially if a service has previously made an undertaking or where the MHCC has previously made recommendations about compliance with the Act. These investigations are less of an additional burden on services if they can demonstrate they have met their obligations. My hope is that services will use this letter as a prompt to consider if further training or practice improvements can be implemented now, or if previous commitments need to be revisited.

The MHCC will continue to investigate any matter that I deem appropriate, and the focus on this area does not diminish our ongoing commitments to safeguarding rights. I will also consider exercising my statutory power to publish a report of an investigation if I consider that this is appropriate. Publishing information about a complaint or an investigation requires sensitivity, and I will continue to balance public interest with fairness and rights.

The mental health system works better for everyone when it acknowledges and addresses existing power imbalances that can discourage consumers and carers from speaking up and make it difficult for them to self-advocate, often at the most challenging periods in their lives.

A common hope from consumers when raising a serious complaint is that in reliving their experience, it will lead to a better outcome for others, so it is of utmost importance that consumers can trust services to not only make the changes they have committed to, but also that these changes are meaningful.

I am committed to ensuring this occurs.

While the impact of COVID-19 on mental health and the mental health system is undeniable, now we must focus more than ever on facilitating a mental health system that's trauma-informed, recovery oriented and based on self-determination, a system in which consumers, carers, and service providers work hand in hand to realise the vision of the Royal Commission.

By Treasure Jennings, Mental Health Complaints Commissioner, Victoria.

Reviewed 31 August 2022

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