'Sanism', a socially acceptable prejudice: addressing the prejudice associated with mental illness in the legal system

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 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.