'Sanism' a socially acceptable prejudice

472 Pages·2014·3.1 MB·English

by  Williams, Valerie

‘SANISM’, A SOCIALLY ACCEPTABLE PREJUDICE:
ADDRESSING THE PREJUDICE ASSOCIATED WITH
MENTAL ILLNESS IN THE LEGAL SYSTEM

BY
VALERIE WILLIAMS

SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR
THE DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF TASMANIA
FACULTY OF LAW
NOVEMBER, 2013

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STATEMENTS
This thesis contains no material which has been accepted for a degree or diploma by
the University or any other institution, except by way of background information
and duly acknowledged in the thesis, and to the best of the candidate’s knowledge
and belief, no material previously published or written by another person except
where due acknowledgment is made in the text of the thesis,

The research associated with this thesis abides by the international and Australian
codes on human and animal experimentation, the guidelines by the Australian
Government's Office of the Gene Technology Regulator and the rulings of the
Safety, Ethics and Institutional Biosafety Committees of the University.

Signature .........................................................................................
Date ...........................................................................................

This thesis may be made available for loan and limited copying in accordance with
the Copyright Act 1968 (Cth).

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ACKNOWLEDGEMENTS
First, I wish to acknowledge my supervisors, Associate Professor Rick Snell and Dr
Jeremy Pritchard, who gave me freely of their time, advice, encouragement and
guidance. To them, I offer my sincerest gratitude for their support, which has
spanned the euphoric highs and the debilitating lows that have been my life during
the past four years. Thank you. I also acknowledge and thank Daniel de la Motte
for his work in designing a data capturing system, which was both easy to
understand, but more importantly, easy to use. I also want to acknowledge and
thank Dr Jason Little for his invaluable statistical assistance in helping to me to
accurately interpret the captured data and to validate the results set out in Chapter
Eight. My gratitude also flows to Dr Elise Histed for her friendship and support.
My thanks are also given to the teaching and administrative staff of the University
of Tasmania School of Law. They have been my teachers, colleagues, mentors,
supporters and friends, many for more than 20 years. My gratitude is also given to
Katie Purchas and Charlotte Hunn for their administrative support. Finally, I wish
to thank the hundreds of University of Tasmania law students who participated in
the study. The information gained from their responses will prove a valuable
resource in developing and implementing future policies and programs, which will
positively influence the impact that the legal system has on people who experience
mental illness.

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Table of Contents

INTRODUCTION .................................................................................................................. 1
CHAPTER ONE MENTAL HEALTH: AN AREA OF CONCEPTUAL AND
DEFINITIONAL CONFUSION ................................................................................ 26
CHAPTER TWO MENTAL ILLNESS: SOCIAL, MEDICAL AND LEGAL
LABELLING ............................................................................................................. 69
CHAPTER THREE CONCEPTUALISING STIGMA: STEREOTYPES,
PREJUDICE AND DISCRIMINATION ................................................................... 99
CHAPTER FOUR CHALLENGING STIGMA: THE INTERMIX OF POLICY,
LAW AND CULTURAL INTERVENTION .......................................................... 151
CHAPTER FIVE THE CONTROVERSIAL CONCEPTS OF SANISM AND
PRETEXTUALITY ................................................................................................. 221
CHAPTER SIX THE LEGAL SYSTEM’S ‘SANIST TREATMENT’ OF
PARENTS WHO EXPERIENCE MENTAL ILLNESS ......................................... 266
CHAPTER SEVEN THE MENTAL HEALTH TRIBUNAL
REPRESENTATION SCHEME .............................................................................. 319
CHAPTER EIGHT EMPIRICAL FINDINGS OF LAW STUDENT
ATTITUDES TO PEOPLE WHO EXPERIENCE MENTAL ILLNESS ............... 369
CONCLUSION .................................................................................................................. 442
APPENDIX 1 ..................................................................................................................... 455
APPENDIX 2 ..................................................................................................................... 456
APPENDIX 3 ..................................................................................................................... 457
APPENDIX 4 ..................................................................................................................... 459
APPENDIX 5 ..................................................................................................................... 463
APPENDIX 6 ..................................................................................................................... 466

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LIST OF TABLES
Table 1 – Demographics of study participants.................................................... …….. 387
Table 2 – Participant numbers and percentages ................................................................. 388
Table 3 – Percentage of ‘No opinion’ responses to all Items by 1st year and Final
year students ............................................................................................................ 390
Table 4 – Percentage of ‘Agreement’ and ‘Disagreement’ responses by 1st year
and Final year students by gender (total females = 158, total males = 98) ............ 392
Table 5 – Percentage of ‘Agreement’ and ‘Disagreement’ responses by 1st year
and Final year students by gender (total females = 158, total males = 98) ............. 395
Table 6 - Recognizing a person as ‘having a mental illness’ ............................................. 399
Table 7 – Group 1 - agreement and disagreement by year (total 1st years = 193,
total final years = 63) ............................................................................................... 403
Table 8 – Group 1 - agreement and disagreement by year (total 1st years = 193,
total final years = 63) ............................................................................................... 404
Table 9 – Group 2 - Agreement and disagreement by personal experience of
mental illness reporting ........................................................................................... 406
Table 10 – Group 2 - Agreement and disagreement by personal experience of
mental illness reporting ........................................................................................... 408
Table 11 – Group 2 - Agreement and disagreement by MHTRS participation ................. 411
Table 12 – Group 2 - agreement and disagreement by MHTRS participation .................. 413

LIST OF FIGURES
Figure 1a – MI legal clients would be difficult to represent .............................................. 388
Figure 1b – MI are stigmatised and discriminated against ................................................ 389
Figure 2 – Final Page Q3 – ‘Do you use terms such as loony...’ – MI/no MI
Groups ..................................................................................................................... 409
Figure 3 –MI should be treated differently to other people (II1 –Table 11) ...................... 412
Figure 4 – MI legal clients should be treated differently (IJ12 Table 12) ......................... 412
Figure 5 – Final Page Q3 – ‘Do you use terms such as loony...’ MHTRS/no
MHTRS ................................................................................................................... 414

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INTRODUCTION
1. ABSTRACT
The thesis explores society’s prejudice and intolerance toward mental illness. It
provides a narrative reference to stigma, which is drawn primarily from the
biosocial science disciplines, and applies it to the law and its implementation. It
examines the limited success that health policies, legislation, cultural interventions
and anti-stigma campaigns have had in reducing stigma to which the better
achievements appear to have resulted from short term, specialist education and
contact programs targeting young people. It investigates the impact that labelling
and harmful stereotypes, which inform biased decision-making have on the
opportunities for people experiencing mental illness to receive fair and equitable
legal outcomes. In this regard, the thesis explores Michael Perlin’s controversial
notion of sanism: an irrational but socially acceptable prejudice directed against
people with mental illness. Perlin argues that the legal system is so embedded with
stigmatising myths and negative stereotypes that its discriminatory actions largely
go unnoticed, or unacknowledged, or are justified as legal actions and behaviours
that are acceptable in the circumstances; those circumstances being that the person
has a mental illness.
Perlin’s ideas have developed primarily from thirty years of personal observation,
which to date have not been critically tested. This thesis set about examining
Perlin’s sanism propositions through a combination of doctrinal and empirical
research. The doctrinal analysis centred upon conflicted parenting decisions, which
identified the presence of sanism in legal decision-making and legislation.
Secondly, a review of 296 Australian family law conflicted parenting order cases
decided between 2006 and 2011was conducted. The findings indicated that parents
who have an experience of a mental illness, or merely appear to the court to have a
mental illness, are at significant risk of having their parental responsibilities
severely restricted, or removed entirely, on the basis of their stereotypification as an
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INTRODUCTION

unfit parent and their categorisation as an ‘unacceptable risk’ to the wellbeing and
safety of their child.
The empirical assessment of Perlin’s views regarding sanist law students is the first
of its kind. A survey study was conducted that examined attitudes about people
experiencing mental illnesses generally, and legal clients particularly of (N=204)
students entering law school and (N=81) students exiting law school. Overall, the
results supported Perlin’s perspectives. They indicated that the student’s attitudes
were, to a high degree, authoritarian and benevolently prejudicial. There were few
significant differences based on variables of gender and self identification of a
mental illness although the data revealed a large, culturally significant difference
between domestic and overseas respondents and female respondents were
significantly more benevolent in their attitudes than the males. The final
component of the research involved an evaluation of the Tasmanian Mental Health
Tribunal Representation Scheme (MHTRS) which has operated since 2003. It uses
a therapeutic jurisprudence model to train volunteer law students to represent
people appearing before the Tasmanian Mental Health Tribunal. It was anticipated
that participating in the MHTRS would reduce sanist attitudes among students;
however, this study did not establish a consistently positive change in the attitudes
of the participant respondents. Overall, the thesis provides valuable insight into the
planning of future strategies designed to reduce the prejudice and discriminations
that people with a mental illness experience when confronting the legal system.
2. PURPOSE OF THE THESIS
The first purpose of this thesis is to examine Perlin’s claims that the legal system is
embedded with the hidden prejudice associated with mental illness: sanism.
Exposing sanism in this way will contribute to both a reduction in the
discriminatory treatment of service users experiencing a mental illness and an
improvement in the opportunities available for this disadvantaged group to achieve
fair and just legal outcomes. Other than Perlin’s numerous articles and the small
number of others authored by supporters of his concepts of ‘sanism’ and
‘pretextuality’, the majority of legal commentators have, as yet, failed to recognise
or address the socially acceptable prejudices perpetrated by the legal system’s
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INTRODUCTION

mentally powerful against the mentally vulnerable. Sanism, it seems, offers the last
bastion of acceptable prejudice.
To understand why and how these prejudices continue to pervade policies, laws and
legal and social practices, it is necessary to examine contextually the concepts of
mental health and mental illness within their medical, social and legal parameters. It
is also important to precurse the discussion with a sociological exploration of the
concept of stigma so as to understand how negative attitudes and beliefs create
social distance; erect institutional barriers between the ‘powerful’ and the
‘powerless’; and justify as acceptable, outcomes which would be unacceptable if the
party did not have a mental illness. Once stigma and sanism are exposed in this
way, and the unacceptable is no longer acceptable, it will be necessary to develop
and implement policy and program change initiatives to effect positive cultural and
systemic change.
The second purpose of this thesis is to promote as a future change initiative, the
establishment of mental health clinical legal education programs similar to the
therapeutic jurisprudence model presented in Chapter Seven. An evaluation of the
Mental Health Tribunal Representation Scheme was undertaken. Data was
collected from a questionnaire completed by 285 University of Tasmania law
students responding to questions about mental illness generally, and legal clients
experiencing mental illness specifically. Although the research did not achieve a
significantly clear measure of the positive impact that the program had on students,
it did provide valuable insight into the need for further research on the topic as well
as constructive information on how survey procedures can be improved.
3. JUSTIFICATION OF THE THESIS
The PhD is awarded on the basis of a thesis prepared under supervision that makes
an original, significant and extensive contribution to knowledge and understanding
in the relevant field of study. To this end, the thesis undertakes a narrative analysis
of the social phenomenon of stigma and sanism through the examination of an
extensive number of medical, legal and social science academic publications. It also
examines policies, laws and practices utilised by political and social institutions
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INTRODUCTION

with the intention of reducing the stigma, and decreasing the discrimination
associated with mental illness in the legal system.
Stigma infects the lives of people experiencing mental illness by diminishing their
self-esteem and robbing them of social opportunities. Although it is widely
accepted that stigma gives cause to prejudice, social rejection, isolation and
discrimination, this is not so when it comes to the law. The perception of neutrality,
impartiality, fairness and justice tend to override thoughts that prejudice and
discrimination associated with mental illness might be both inherent and embedded
in the law’s doctrines, statutes and practices as Michael Perlin contends. It is a very
thorny road to acceptance that the legal system’s biased and pretextual treatment of
parties experiencing mental illness can deny, or significantly limit basic rights and
freedoms.
Support for Perlin’s sanist theory is increasing, although it seems, mostly amongst
mental health professionals and consumers. Other than Perlin’s own extensive
writings, there has been very little academic discussion on the topic, and virtually
no empirical research undertaken to support or dispute Perlin’s claims. This thesis
fills the void by offering (1) academic discourse on the social acceptability of
mental health prejudice, (2) original research of recent Australian family law
parenting order cases in an attempt to identify a sanist judicial approach to decision-
making when a parent is believed to have a mental illness, and (3) a large, original
quantitative and qualitative research study that examines the attitudes of law
students to mental illness generally, and to legal clients with a mental illness
specifically. It compares the attitudes of respondents who had participated in a
mental health therapeutic jurisprudence clinical legal education program with non-
participants to determine whether participation improves attitudes.
The thesis provides evidence that helps make Perlin’s concept of sanism more
visible, and less socially acceptable, and it offers recommendations for initiating
positive change mechanisms among law students. It has the overall aim of
decreasing the prejudice and disadvantage that a very vulnerable group of
individuals presently face when they confront the legal system.
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