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Mental disorders, law, and state : a sociological analysis of the periods of reform in Canadian mental health law Gordon, Robert Macaire


A survey and analysis of Canadian statutes and cases affecting the management of the mentally disordered demonstrates that this area of law has experienced several periods of reform since 1900. In the early 1900's, legislation was characterized by 'limited legalism'. Governments subsequently eased, removed, and then re-imposed forms of judicial and quasi-judicial supervision over the activities of medical practitioners, and the periods of reform are referred to as 'medicalization', 'enhanced medicalization', and the 'new legalism'. The law reforms are associated with changes in state strategies for the management of the mentally disordered, and the relationship between these reforms and changes, the state, structural conditions (e.g., shifts in economic policy), and human agency (e.g., the work of reformers) is explored through an analysis of the emergence of 'enhanced medicalization' in the 1950's/60's, and the rise of the 'new legalism' in the 1970's/80's. This includes a detailed case study of shifts in strategy and the process of law reform in the province of British Columbia. This component of the research involved an analysis of documentary and archival materials, and the structuralist theoretical trajectory within the neo-Marxist sociology of state and law is utilized to explain the changes. Enhanced medicalization was an integral part of a strategy involving de-institutionalization, an abandonment of segregated confinement, and the use of community-based resources integrated with the health care component of a Keynesian, 'welfare state'. Institutions were seriously over-crowded, ineffective, expensive, and discredited, and the emergence of social assistance and other features of the welfare state enabled the development of alternatives. The conditions were favourable to the efforts of a group of reformers that was an auxiliary part of the state apparatus; namely, the Canadian Mental Health Association. The latter constructed a strategy and supporting legislation which advanced the interests of psychiatry and resolved the state's order maintenance and legitimation problems in a manner consistent with welfare state expansion. Economic difficulties and changes which began to emerge in the 1970's created new problems for the state, and cost-stabilization and restraint measures were imposed throughout the politically sensitive health care field. The strategy for the management of the mentally disordered consequently shifted to, in particular, accelerated de-institutionalization aimed at hospital closure. In order to facilitate and legitimate the shift, the state has adopted reforms proposed by the patients' rights movement and, despite the objections of organized psychiatry, introduced legislation which limits the use of hospitals and erodes medical domination (i.e., the new legalism). The contributions to the sociologies of social control, state and law are discussed and the convergence of these fields is identified. The implications for the neo-Marxist theoretical research programme are examined.

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