The Legacies of Institutionalisation

Disability, Law and Policy in the 'Deinstitutionalised' Community

Claire Spivakovsky, Linda Steele, Penelope Weller, Claire Spivakovsky, Linda Steele, Penelope Weller

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509930746
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

This is the first collection to examine the legal dynamics of deinstitutionalisation. It considers the extent to which some contemporary laws, policies and practices affecting people with disabilities are moving towards the promised end point of enhanced social and political participation in the community, while others may instead reinstate, continue or legitimate historical practices associated with this population's institutionalisation. Bringing together 20 contributors from the UK, Canada, Australia, Spain and Indonesia, the book speaks to overarching themes of segregation and inequality, interlocking forms of oppression and rights-based advancements in law, policy and practice. Ultimately this collection brings forth the possibilities, limits and contradictions in the roles of law and policy in processes of institutionalisation and deinstitutionalisation, and directs us towards a more nuanced and sustained scholarly and political engagement with these issues.

Part One

Power Dynamics that Shape the Conditions and Possibilities of People With Disabilities Within and Beyond Sites of Physical Confinement

Conventionally, the injustices of disability institutionalisation are associated with the aesthetic, architectural and material forms of specific sites of physical confinement – large buildings, high fences, locked doors and physical restraints. Such an approach encourages us to assume that the political and social status of people with disabilities (PWD) can be transformed through deinstitutionalisation strategies of closing, opening up or downsizing their physical sites of confinement.

Yet, as we discussed in the Introduction, a body of scholarship spanning early work by Goffman and Foucault to current scholarship by critical disability studies and Mad studies scholars unsettles these assumptions. This scholarship invites us to shift our focus to less visible and tangible dynamics of power that shape the conditions and possibilities of PWD within and beyond sites of physical confinement, through attention to power relations, individual identity and subjectivity, and the defining and sorting of populations. For the chapters in this Part, that scholarship is particularly significant in three respects. The first is that it draws our attention to continuities in logics and practices across a range of coercive interventions ranging from physical confinement to interventions that emerged in the light of deinstitutionalisation such as community mental health treatment, disability case management and supported living in group homes. Second, the scholarship suggests that we should not concentrate only on the repressive dynamics of power – coercion and restraint – but be attentive to productive and positive dynamics of power in terms of how the conditions and possibilities for PWD come to be shaped and limited through freedom, choice and empowerment (the very ideals we might think of as the antithesis of those driving institutionalisation). Third, this scholarship draws attention to the centrality to the continued oppression of PWD of epistemic and ontological injustices: they continue to be positioned as incapable of knowing and articulating their own experiences and needs, thus creating a lacuna that can be conveniently filled by professional experts who are assumed to know best when they recommend, support or enact confinement and coercive interventions.

The chapters in Part One contribute to this scholarship through exploring how, in the deinstitutionalised community, laws and policies give rise to possibilities for injustice including segregation, control, violence and epistemic negation to ultimately denying full citizenship and indeed full humanness to PWD. Particular attention is paid to laws and policies that are premised on enhancing the liberty, rights, inclusion and wellbeing of PWD.

This Part opens with Liz Brosnan’s autoethnographic exploration of the inclusion on Irish mental health tribunals (MHTs) of lay persons (i.e. individuals with an ‘interest in mental health’ which covers social workers, journalists, and possibly family members). These lay persons work as part of interdisciplinary decision-making teams alongside lawyers and psychiatrists, and form part of a larger set of reforms to the legal procedures for coercive mental health interventions. Brosnan reflects on her experiences as a member of a lay panel. She highlights the profound limitations and contradictions of being a lay person who has lived experience of the civil mental health system by reason of the continued privileging of legal and medical authority in the structure of the tribunal and in the overarching discourses of the legislation. Through her reflections on the hearing of one woman, ‘Margaret’, Brosnan illuminates how the pervasive epistemic invalidation of those who appear before the MHTs facilitates their confinement and coercive intervention. While Brosnan is ambivalent about her ability, as a ‘peer’, to challenge these dynamics, the autoethnographic methods employed in her chapter represent one strategy for disrupting the epistemic injustices of contemporary mental health law.

Continuing the focus on contemporary mental health laws, in Chapter 2 Penelope Weller takes a closer look at how ostensibly positive moves to ‘empower’ certain PWD in their relationship with law and policy may still work, simultaneously, to reinforce the interests of the state in relation to these populations. Weller’s analysis of Australian civil mental health law highlights that ideas of freedom that emerge against specific sites of physical confinement provide openings for the emergence of virtual institutions that are legitimated and sustained through what she refers to as ‘coercive freedom’ – the harnessing of ideas of choice, recovery and community for very specific ends. Drawing on the writings of US political philosopher Barbara Cruikshank, Weller contends that the empowerment and recovery movement in mental health is an example of a technology of personal governance tailored toward PWD which, through the reification of the neoliberal ideal of choice, limits the recognition of the substantively restricted options available to PWD beyond submission to mental health treatment, notably when their recovery and empowerment in legal terms manifests in coercive mental health treatment.

In Chapter 3, Salvador Cayuela Sánchez shifts from a specific focus on mental health law to consider a broader set of policy sectors that are conventionally understood as key sites of political and social transformation for PWD after deinstitutionalisation. Cayuela Sánchez argues that in the wake of deinstitutionalisation in Spain, new forms of control emerged through the re-organisation of populations within the community into segregated systems of education, health and employment that were intrinsically linked to legitimating nation building and democratic transformation, and thus ultimately limited the extent to which PWD could access full citizenship. Cayuela Sánchez makes these arguments through a case study of Late Francoism and the beginning of the Spanish Democratic Transition. Here, Cayuela Sánchez shows how at the end of the Spanish Civil War (1936–39), the Franco regime had to activate a huge number of biopolitical mechanisms to garner the legitimacy necessary to uphold the recently established political order, and how these mechanisms saw the regulation of PWD become a specific objective for this new governmentality.

In Chapter 4, Eduardo Díaz Velázquez draws attention to tensions and contradictions in legislation and public policies on disability in contemporary Spain. Díaz Velázquez shows how individual enjoyment of citizenship rights provided in laws and policies relies on access to supports in a context where such access is not guaranteed and instead depends on one’s socioeconomic circumstances. On a related note, he highlights the persistence of institutionalisation (or segregation) through laws and policies ostensibly focused on inclusion in the community, with individuals’ relative exposure to institutionalisation in part depending on their socioeconomic circumstances and financial capacity to avoid requiring state-funded services. Díaz Velázquez argues that Spanish legislation and public policies do not include enough regulatory or economic guarantees to actually achieve material and political equality between people with and without disability, resulting in the perpetuation of limitations in inclusive education, access to employment, and independent living.

In Chapter 5, Roxanne Mykitiuk also explores the contradictions of empowering ‘reform’ in employment and education sectors through an analysis of the operation of equality and anti-discrimination law for academics. She focuses on a particular subset of Canadian university faculty members with disability, those with episodic disability that are characterised by unpredictable or intermittent, fluctuating periods of impairment and wellness. Utilising autoethnographic methods, Mykitiuk discusses how processes for seeking reasonable accommodations available to her through university policies premised on equality and anti-discrimination laws ultimately served to enable and legitimate the university as a site of control and exclusion. She suggests that equality and anti-discrimination laws purportedly directed towards enhancing representation and participation of PWD in the workforce do not unsettle ableist neoliberal frameworks driving universities, forcing academics with disabilities to ‘normalise’ themselves to accommodate the unrealistic, unjust and disabling expectations of the academy.

In Chapter 6, Sheila Wildeman turns our attention to the criminal justice context. She raises concerns about what she refers to as the increasing ‘mental-healthification’ of prison justice. By this she is referring to the reliance on mental health diagnosis, treatment and detention as a purported humane and therapeutic set of responses to problems with the mainstream incarceration of people with disabilities. Wildeman sees this focus on mental health as individualising and pathologising injustice and distracting attention from addressing socio-structural dynamics of criminalisation and incarceration. She develops this argument through an analysis of recent Canadian human rights litigation challenging solitary confinement. Wildeman highlights the perhaps unexpected complicity of Canadian Charter of Rights and Freedoms jurisprudence which draws on progressive legal concepts such as procedural justice and non-discrimination, in legitimating the confinement and coercive intervention of prisoners with disabilities. Her chapter encourages us to consider the ways in which institutionalisation is sustained through judicial decision making and domestic human rights law and suggests ‘anti-carceral’ lawyering as one way that the legal profession can challenge the ongoing legacies in law of institutionalisation.

1

Navigating Mental Health Tribunals as a Mad-identified Layperson

An Autoethnographical Account of Liminality

LIZ BROSNAN

This chapter presents autoethnographical reflections upon the socio-medico-legal operation of Irish mental health law; specifically, mental health tribunal (MHT) reviews of involuntary detention under the Mental Health Act 2001/2006. In the context of examining how contemporary law, policy and practices can inadvertently legitimate legacies of institutionalisation practices, I offer my personal experiences and perspectives as a layperson member of approximately 40 MHTs over the course of seven years (2006–13). As someone with insider experience of several involuntary detentions in the 1990s, I seek to illustrate the institutionalised ethos within spaces purported to uphold safeguards against arbitrary detention, a lingering remnant of the old asylum regimes. I argue that what occurs within these regulated spaces reinforces the institutions of psychiatry (aided by law) to exert absolute control over the lives of people subject to mental health legislation. One particular instance evidences how the epistemic violence of institutions of law and psychiatry play out in intimate, micro-scale enactments of institutional power, invalidating individuals’ experiences and worldviews through the privileging of expert authority.

Mental health tribunals are a ubiquitous feature of modern mental health legislation. They were introduced to provide oversight of medico-legal decisions and protect people who are detained and treated involuntarily against arbitrary detention and treatment.¹ Irish mental health law does not permit compulsory treatment orders in the community,² so MHTs regulate compulsory inpatient detention in designated acute psychiatric units. The functions, procedures and powers of MHTs differ somewhat across legislative contexts, but they always have three members: a chairperson who is a legal expert, a psychiatrist and a ‘lay person’. Lay members were introduced to contribute a perspective that complements and balances the medical and legal expertise. The lay member holds an ill-defined ro...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Notes on Contributors
• Introduction: The Lasting Legacies of Institutionalisation: Questioning Law’s Roles in the Emancipation of People with Disabilities
• PART ONE: POWER DYNAMICS THAT SHAPE THE CONDITIONS AND POSSIBILITIES OF PEOPLE WITH DISABILITIES WITHIN AND BEYOND SITES OF PHYSICAL CONFINEMENT
• PART TWO: COMPLICATED ALLIANCES: THE CONFLUENCE OF ABLEIST, SANIST, GENDERED, CLASSED AND RACIALISED LOGICS IN LAW, POLICY AND PRACTICE
• PART THREE: INSTITUTIONALISATION AND HUMAN RIGHTS: THE ROLE OF THE CRPD IN THE EMANCIPATION OF PEOPLE WITH DISABILITIES
• Index
• Copyright Page