Unequal Rights: Discrimination against People with Mental Disabilities and the Americans with Disabilities Act (review)

Susan Stefan. Unequal Rights: Discrimination against People with Mental Disabilities and the Americans with Disabilities Act. Washington, DC: American Psychological Association, 2001. 405 pp. $49.95 cloth.

Most of us have come to expect wheelchair ramps at public buildings and sign language interpreters at graduations. Parents pushing strollers appreciate curb cuts designed to allow people in wheelchairs to cross the street. The general understanding of what the Americans with Disabilities Act (ADA) has accomplished is usually limited to physical disabilities where both the disability and what needs to be done to improve access are concrete and clear. But are guardianship statutes discriminatory if they treat those who require assistance because of mental illness differently from those who need help for other reasons? This question and others like it are less intuitive and require understanding much more about the nature of disability and discrimination. In Unequal Rights: Discrimination against People with Mental Disabilities and the Americans with Disabilities Act, author Susan Stefan addresses a significant gap in this understanding by considering questions of "hidden" disabilities, specifically mental disabilities. While closely examining mental illness as a disability, Stefan illustrates the difficulty of determining what constitutes discrimination and sometimes even what constitutes a disability.

During consideration of the ADA, some members of Congress attempted to exclude mental disabilities from the statutes' protection, and even now, more than ten years later, editorial writers regularly call for revision of the law to eliminate coverage of people with mental illness. An impairment is considered a real disability when it is visible, permanent, and beyond the individual's control. As for mental illnesses, society holds a deep belief that the person claiming a psychiatric disability could, if he or she only tried hard enough, not be disabled at all. Even though mental disabilities were included and remain in the statute, Stefan's book argues persuasively that more needs to be done to end discrimination against this marginalized community.

Historically, people with mental illness were completely excluded from society through segregation in institutions. Given the desire of some to exclude people with mental illness from the protection of the ADA, it is notable that people with mental disabilities recently won a significant victory in the U.S. Supreme Court. In Olmstead v. L. C. (527 U.S. 581 [1999]), the Court found that unnecessary institutionalization is discriminatory, so that states are now required to have a system in place to move appropriate patients out of institutions and into community-based care. Stefan provides a thorough analysis of this decision, with an eye to providing nonlegal professionals with enough information to evaluate whether a state's decision-making process is consistent with this mandate or remains discriminatory. This requires understanding the standards that courts use to decide these issues as well as what constitutes a valid exercise of professional judgment. Those making treatment decisions and setting state policy would do well to read this chapter and understand how a court will review the state's decision making when there is a challenge.

Despite the positive impact of the Olmstead decision, most of this book documents the many ways in which people with mental disabilities still suffer discrimination. Stefan reviews the provision of insurance, accessibility of public benefits, laws regarding the right to vote, to marry, civil commitment, and more. She argues that even "mental health courts," offered in some communities with the—theoretically positive—goal of diverting mentally ill people from the criminal justice system, can be discriminatory because they result in institutionalization for crimes that would be unlikely to result in incarceration. And institutionalization, according to Stefan, is harmful to people with mental illness. Although harm certainly has been visited on people in institutions, she gives little attention to circumstances where institutionalization is necessary or to the complications of effective community-based care...