Tolling For the Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization of Racial Minorities and Women in Institutional Mental Disability Law

Individuals with mental disabilities have traditionally been and continue to be subjected to rights violations and pervasive discrimination because of their mental disabilities. Seen as “the other,” individuals who are racial minorities and/or are women are marginalized to an even greater extent than other persons with mental disabilities in matters related to civil commitment and institutional treatment (especially involving the right to refuse medication). It is impossible to examine these questions critically without coming to grips with the ways that expert testimony — testimony that is essential and necessary in all these cases — is infected with bias that leads to skewed legal decisionmaking. Beginning with a consideration of disparities in the access to and quality of mental health care among individuals with mental disabilities who are women, racial and ethnic minorities, we need to focus on why the struggle to overcome rights violations is often greater for persons with mental disabilities who are not of the dominant race or gender, and why it is essential that this area of law must be studied in the context of prevailing social policies as they relate to these topics. Here we cannot avoid consideration of the significance of the interrelationships between social biases and “scientific” judgment, as reflected in expert testimony in cases in all the sub-areas of mental disability law referred to above. In our paper, we will thus consider: • How race and gender relate to decisions made about the civil commitment process, and the implications of these findings, considering issues involving state-sanctioned racial segregation, mis- and over-diagnosis, the pernicious use of racial and gender stereotypes, the deeper significance of disparities in access to health services, and cultural competency, and • How race and gender relate to decisions made about institutional rights, and the implications of these findings, considering issues related to restraint and seclusion, administration of antipsychotic medication, dual diagnosis (along with substance abuse), and the extent to which information about side-effects of medication is shared with patients. Our findings are not a surprise: our most vulnerable populations — racial, cultural and gender minorities — are consistently harmed by marginalization that targets persons with mental disabilities. In an attempt to understand how the current state of affairs developed, we then consider the four key factors that permeate and poison all of mental disability law: sanism, pretextuality, heuristic reasoning, and (false) “ordinary common sense” (OCS), and we contextualize all of this within the model of therapeutic jurisprudence, a vehicle through which we can assess the impact of case law and legislation on the subjects of such law. The ultimate aim of therapeutic jurisprudence is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. We conclude by offering some modest suggestions as to how the current situation might best be remediated, using therapeutic jurisprudence as the basis of our proposed solutions. By way of example, current practices — based on statistically invalid and socially pernicious stereotypes of “dangerousness” in matters involving African-Americans or of women — make a mockery of the “validation” principle that is at the heart of therapeutic jurisprudence.