Disability, Gender and Institutions : An Examination of Australian Cases Involving Personality Disorders

Karpin, I; O'Connell, K

Disability, Gender and Institutions : An Examination of Australian Cases Involving Personality Disorders

Karpin, I

O'Connell, K

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Publisher:: Hart Publishing
Publication Type:: Chapter
Citation:: The Legacies of Institutionalisation Disability, Law and Policy in the ‘Deinstitutionalised’ Community, 2020, pp. 135-148
Issue Date:: 2020-07-09

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Field	Value	Language
dc.contributor.author	Karpin, I https://orcid.org/0000-0001-9326-3421
dc.contributor.author	O'Connell, K https://orcid.org/0000-0001-8704-8231
dc.date.accessioned	2020-09-09T06:00:47Z
dc.date.available	2020-09-09T06:00:47Z
dc.date.issued	2020-07-09
dc.identifier.citation	The Legacies of Institutionalisation Disability, Law and Policy in the ‘Deinstitutionalised’ Community, 2020, pp. 135-148
dc.identifier.isbn	1509930736
dc.identifier.isbn	9781509930739
dc.identifier.uri	http://hdl.handle.net/10453/142582
dc.description.abstract	The deinstitutionalisation of people with mental health issues from psychiatric hospitals and mental health facilities in Australia from the 1970s through to the 1990s[1] had the potential to be a liberalising policy that ended harmful and dehumanising practices of isolation and abuse. In fact, deinsitutionalisation as a process is ongoing and has had mixed success. Demands for compensation for those who suffered abuse in these ‘total institutions’[2] and punishment of the perpetrators continue.[3] By way of understanding the limited success of deinstitutionalisation, this chapter turns to what initially might be considered an opposing desire: institutional inclusion. We argue that the exclusionary practices of ‘social institutions’[4] are a co-related 136problem. In order to make this argument, we consider the role for law in responding to situations where people with mental illness are denied access to, or rejected from, social institutions such as the workplace because they do not fit within the norms and values lodged in those institutions.[5] Douglas argues that ‘[t]he most profound decisions about justice are not made by individuals as such, but by individuals thinking within and on behalf of institutions’.[6] If social institutions structure our way of thinking and the abstract principles for regulating behaviour,[7] then it is easy to see how social institutions can, in practice, diminish the expected successes of the ‘deinstitutionalisation’ project by continuing to shut people with disabilities out of public life in ways that have largely escaped the degree of scrutiny imposed on total institutions. Law then, in its inadequate remedies, sometimes amplifies the exclusion of those whose behaviour sits outside social norms.[8] Any discussion of deinstitutionalisation from ‘total institutions’ then, must occur in conjunction with consideration of exclusion from the ‘social institutions’ that play a crucial complementary role as gatekeepers to full public participation, offering community and access to social and financial resources. These benefits can be particularly elusive for people diagnosed with personality disorders whose behaviour (by definition) falls outside the norms and codes of conventional social institutional expectations. Under the definition in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published by the American Psychiatric Association (APA),[9] a personality disorder is constituted by ‘an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture’.[10] The current volume of the DSM also states that in relation to a personality disorder: ‘Only when personality traits are inflexible and maladaptive and cause significant functional impairment or subjective distress do they constitute personality disorders.’[11] People with personality disorders, then, are subject to a form of institutional exclusivism. This has limited the capacity of people who struggle to meet the 137stringent standards of ‘normality’ to gain access to social institutions. They do not fit easily within the institution’s integral norms and values. Law is one of the primary mechanisms for ensuring access to institutional benefits and providing remedies where they are unfairly withheld. However, it, too, is a social institution and, as we will show in this chapter, a failure to acknowledge the socially constructed and contextual nature of behavioural disabilities such as personality disorders can feed into legal regulation and remedies that facilitate exclusion rather than inclusion. The law does this by defining the hurdle to full institutional access as disability in the individual (or accepting diagnoses to the same effect) rather than challenging the way that social institutions themselves are constructed.[12] This creates a seemingly beneficial regulatory system that nevertheless only measures harms against norms and values that do not include disability as intrinsic to the institution or, at most, include disability to the extent that accommodation requires only minor efforts. The economic profitability of the institution and its capacity to continue to function largely without disruption are paramount. In other words, while accommodation of disability is perceived as appropriate, it stops being appropriate when the institution is called upon to change fundamentally. In this chapter we focus on how the law responds when women with personality disorders turn to the law to facilitate or remediate their interaction with the social institutions of work and family.[13] We examine, in the work context, the situation of women with personality disorders who, having been the subject of gendered violence such as sexual or physical abuse, have nevertheless managed to function as effective workers until they are subject to a work environment they experience as hostile, at which point their capacity to operate within the workplace is compromised. This is to highlight a central problem for law when 138relying on psychiatric diagnoses that measure disorder against dominant cultural and institutional norms. The culture that forms a component of the diagnosis is itself laden with gender and other biases that are part of a long history of privileging and excluding certain groups within law and other social institutions. So, to be ‘maladaptive’, as in the diagnostic criteria of a personality disorder found in the DSM 5, one is not measured against some objective standard but a norm that is developed within a cultural and institutional context. This cultural environment includes, for example, some degree of acceptance of deep patterns of gendered violence and abuse. That acceptance then makes it possible to frame the maladaption as the woman’s failure to adapt to an environment that others without a disability may dislike but may deal with more ‘robustly’.
dc.format.extent	17
dc.language	en
dc.publisher	Hart Publishing
dc.relation.ispartof	The Legacies of Institutionalisation Disability, Law and Policy in the ‘Deinstitutionalised’ Community
dc.relation.isbasedon	10.5040/9781509930760.ch-009
dc.rights	info:eu-repo/semantics/restrictedAccess
dc.title	Disability, Gender and Institutions : An Examination of Australian Cases Involving Personality Disorders
dc.type	Chapter
utslib.for	1801 Law
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
pubs.organisational-group	/University of Technology Sydney/e-Press
pubs.organisational-group	/University of Technology Sydney/Strength - HJ - Health Justice
pubs.organisational-group	/University of Technology Sydney
utslib.copyright.status	closed_access	*
pubs.consider-herdc	false
dc.date.updated	2020-09-09T06:00:42Z
pubs.place-of-publication	UK
pubs.publication-status	Published
dc.location	UK

Abstract:

The deinstitutionalisation of people with mental health issues from psychiatric hospitals and mental health facilities in Australia from the 1970s through to the 1990s[1] had the potential to be a liberalising policy that ended harmful and dehumanising practices of isolation and abuse. In fact, deinsitutionalisation as a process is ongoing and has had mixed success. Demands for compensation for those who suffered abuse in these ‘total institutions’[2] and punishment of the perpetrators continue.[3] By way of understanding the limited success of deinstitutionalisation, this chapter turns to what initially might be considered an opposing desire: institutional inclusion. We argue that the exclusionary practices of ‘social institutions’[4] are a co-related 136problem. In order to make this argument, we consider the role for law in responding to situations where people with mental illness are denied access to, or rejected from, social institutions such as the workplace because they do not fit within the norms and values lodged in those institutions.[5] Douglas argues that ‘[t]he most profound decisions about justice are not made by individuals as such, but by individuals thinking within and on behalf of institutions’.[6] If social institutions structure our way of thinking and the abstract principles for regulating behaviour,[7] then it is easy to see how social institutions can, in practice, diminish the expected successes of the ‘deinstitutionalisation’ project by continuing to shut people with disabilities out of public life in ways that have largely escaped the degree of scrutiny imposed on total institutions. Law then, in its inadequate remedies, sometimes amplifies the exclusion of those whose behaviour sits outside social norms.[8] Any discussion of deinstitutionalisation from ‘total institutions’ then, must occur in conjunction with consideration of exclusion from the ‘social institutions’ that play a crucial complementary role as gatekeepers to full public participation, offering community and access to social and financial resources. These benefits can be particularly elusive for people diagnosed with personality disorders whose behaviour (by definition) falls outside the norms and codes of conventional social institutional expectations. Under the definition in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published by the American Psychiatric Association (APA),[9] a personality disorder is constituted by ‘an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture’.[10] The current volume of the DSM also states that in relation to a personality disorder: ‘Only when personality traits are inflexible and maladaptive and cause significant functional impairment or subjective distress do they constitute personality disorders.’[11] People with personality disorders, then, are subject to a form of institutional exclusivism. This has limited the capacity of people who struggle to meet the 137stringent standards of ‘normality’ to gain access to social institutions. They do not fit easily within the institution’s integral norms and values. Law is one of the primary mechanisms for ensuring access to institutional benefits and providing remedies where they are unfairly withheld. However, it, too, is a social institution and, as we will show in this chapter, a failure to acknowledge the socially constructed and contextual nature of behavioural disabilities such as personality disorders can feed into legal regulation and remedies that facilitate exclusion rather than inclusion. The law does this by defining the hurdle to full institutional access as disability in the individual (or accepting diagnoses to the same effect) rather than challenging the way that social institutions themselves are constructed.[12] This creates a seemingly beneficial regulatory system that nevertheless only measures harms against norms and values that do not include disability as intrinsic to the institution or, at most, include disability to the extent that accommodation requires only minor efforts. The economic profitability of the institution and its capacity to continue to function largely without disruption are paramount. In other words, while accommodation of disability is perceived as appropriate, it stops being appropriate when the institution is called upon to change fundamentally. In this chapter we focus on how the law responds when women with personality disorders turn to the law to facilitate or remediate their interaction with the social institutions of work and family.[13] We examine, in the work context, the situation of women with personality disorders who, having been the subject of gendered violence such as sexual or physical abuse, have nevertheless managed to function as effective workers until they are subject to a work environment they experience as hostile, at which point their capacity to operate within the workplace is compromised. This is to highlight a central problem for law when 138relying on psychiatric diagnoses that measure disorder against dominant cultural and institutional norms. The culture that forms a component of the diagnosis is itself laden with gender and other biases that are part of a long history of privileging and excluding certain groups within law and other social institutions. So, to be ‘maladaptive’, as in the diagnostic criteria of a personality disorder found in the DSM 5, one is not measured against some objective standard but a norm that is developed within a cultural and institutional context. This cultural environment includes, for example, some degree of acceptance of deep patterns of gendered violence and abuse. That acceptance then makes it possible to frame the maladaption as the woman’s failure to adapt to an environment that others without a disability may dislike but may deal with more ‘robustly’.

Please use this identifier to cite or link to this item:

http://hdl.handle.net/10453/142582