or small ones, are deprived of the power over their own lives. One of the non-negotiable rights in modern democracies is liberties. If a person has no power over his/her own life, he loses his/her liberties. His/her humanity is taken away from him/her.

Do evil people run institutions?

One cannot deny that total institutions attract antisocial people. It is so easy to abuse those whose rights, whose power have been denied. Physical and sexual abuses in any kind of institutions is wide-spread. But it would be unfair to say that only bad people work in institutions. I met and spoke to hundreds of nurses, social workers, managers working in mental institutions. Many of them are committed professionals who want to help their users. When I meet these professionals I always feel frustrated. How to explain them that what they do from their heart, for very low wages and even lower societal prestige causes more harm than do good? I found that facilitating unconventional interactions between residents and staff can be helpful. When staff meet residents only as vulnerable and disabled needy beings they cannot discover the capabilities and strengths of their users.

I shall never forget a head nurse in a long term institution in Hungary. Back in 1995 I visited the place. In a separate building there were 19 caged beds, in each of them at least one naked resident. These caged beds were their “homes”, they spent all their time in those cages. When we asked the head nurse why those people were kept in cages, she answered that they were so disabled that cages were the only way to protect them. Years later caged beds were prohibited and I returned the place. All the former cage bed “users” (what a bizarre term, isn’t it?) were doing well without the cages. It is true that the work responsibilities and schedule had to be restructured but it went surprisingly well. Then the head nurse came to me. With tears in her eyes she told me she could not understand how she had been so stupid that she could not have believed that those people could live without cages. And that human caring and share of power is a much better protection than any mechanical restraint.

This head nurse is just one of the many victims who have never seen the capabilities of their users who were trained in a way that people with “severe mental illnesses” are hopless cases, they can’t grow, they can’t recover, they can’t exercise power over their lives.

This false presumption, in conjunction with fear from madness and mad people, maintain total institutions.

What can be done?

I don’t belive in universally applicable recipes. In Hungary the user/survivor umbrella have adopted a multi-track approach. While we advocate for deinstitutionalisation at every possible fora, local and national, we endorse and run alternative services. We also maintain close contacts with peers who live in institutions. We also offer training for staff to challenge their stereotypes. We help set up residents’ councils in institutions and if needed mediate between them and the institution management. Empowerment is crucial, if residents regain power over their lives and are allowed to decide on what and how they want to do then we make an important step forward. We are often criticized that through these activities we endorse institutions. I disagree with that criticism. We must not ignore that ten thousands of people live in institutions in my country and in the foreseeable future this is unlikely to change. We, the privileged ones who, due to our luck, to our social support networks, friends or families could avoid life-long institutionalisation have moral obligation not to forget about those who live in institutions.

I live in a big house with 150 flats. This building could easily be an institution. And still it is my home. It can be my home because I do have my privacy, there is no total power controlling my life. Naturally residents of the house need to accommodate each other in a reasonable manner, but besides that I can decide what life I want to run and how. Also the rules to be followed by all the residents are democratically decided by the assembly of the house. Residents’ councils if properly empowered, trained and respected by management and staff can play a similar role. This will not resolve all the difficulties of institutional life but can result in important improvement of lives with dignity.

Together with other disability groups we are advocating for a moratorium to new admissions in long term institutions. However, we need to be aware that a meaningful deinstitutionalisation will happen only if a range of alternative, non-coercive services are available for people in need. Neediness should not negate strengths and choice may enhance recovery. Instead of total institutions that deprive persons of the basic rights we want services that build on the capabilities and strengths of the persons and that enable growth.

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The legal terrain is replete with struggles of women, charged with mental illness, fighting to retain their statuses of being a wife, a mother or as a holder of property. Our knowledge of women’s engagements with the law is mostly sourced from a reading of legal judgements of appellate courts. There are very few accounts of the everyday details of the courtroom trial in which a woman has to bring together critical resources to defend herself and claim her rights. Through this narration I wish to problematise the codes in which the law promises its ‘protection’ to the woman. Even as a woman appeals to the law to declare her as ‘capable’, she has to consent to the protocols of the pleadings and evidence demanded by legal practice. Such consent implies an ability to produce witnesses and documents to corroborate her account, a courtroom performance that is coherent and systematic, a readiness to subject oneself to medical examinations to prove her wellness and doggedness in the face of an ambivalent rigidity demanded by legal procedure. What follows is an account of a particular case of a woman’s struggle, using the legal forum of Guardian’s and Ward’s Act, to state to her marital community that her illness did not incapacitate her to be a mother to her six year old child. I recount here as her lawyer the difficult decisions and strategies that went into arguing this petition.

Gauri, the petitioner, comes from a middle class teaching family. From the inception of her marital life she felt what she terms ‘ill’. During her illness she sensed a foreign body within her and heard voices. Her husband, angry with her condition, returned her to her natal home from where she was taken to a psychiatrist. The psychiatrist treated her with medication and told her that her experiences are common for newly married women. Following her treatment, Gauri returned to her marital home. Despite her recovery, her husband’s family was unhappy with her, suspicious that she was ‘mad’ and continuously made remarks that they had been cheated by her parents. Her school and college certificates were examined and she was also demanded to go through an IQ test. Gauri suffered their taunts and sometimes confided in her parents who consoled her by telling her that ‘things will settle down in the future.’ Within a year of marriage, Gauri gave birth to a baby girl and the harassment took a different turn after the baby arrived. Gauri was told that she was not attentive to the child’s needs as she was often sleepy and dreamy; and that she was ill-treating the child. The child was soon separated from her on the ground that its welfare was at risk. After a series of fights over many years, Gauri was asked to go away but leave the child behind. Unable to face this harassment, Gauri along with her daughter, ran away to her natal home. Soon after, the husband and his family made many attempts to recover the child from Gauri’s custody. Fearing that she would be separated from her child indefinitely, Gauri moved the family court for a protection order and thus began the legal proceedings for child custody.

Pleadings

Gauri’s husband was livid with rage that she had not only taken away his child but also appealed to the court seeking protection. He pleaded, in his counter, that Gauri’s petition was false and full of lies, and that she was continuously sick and prone to hearing voices. He also added that she was not social, never fulfilled her duties as a wife and daughter-in-law, and was always drowsy and inactive. He reiterated that all along it was he who had taken full responsibility for the upbringing of the child. He filed two dozen prescriptions issued by three psychiatrists and records of Gauri’s visits to the healing centres. In other words, he argued that Gauri was ill and thereby incapable.

As Gauri’s lawyer, I had spent many hours with her, and had discussed her case in detail. Yet, the allegations came as a shock. Indeed, the pleadings were silent about Gauri’s illness except at the initial phase. When I consulted Gauri as to why she had not revealed the extent of her illness to me, she said that she did not think it to be so serious. Her parents confirmed that though Gauri was under medical

treatment, she was a capable and hardworking woman. Moreover, Gauri firmly believed that her illness had been precipitated by the harassment she experienced in her marital home. According to Gauri and her parents the issue was not so much the illness as her husband’s uncompromising attitude towards her that led to the present situation.

The trial proceeded along this principal node of tension. While her married life of ten years revolved around the axis of her illness, her pleadings in the court erased the issue altogether. We pleaded for a general cruelty experienced in the marital home rather than foregrounding her illness as an effect of the cruelty that she suffered. At this stage we could not introduce any fresh lines of reasoning except what we had pleaded. By hindsight I see that we could have pleaded and proved that this illness was temporary and made worse by the ill treatment of her marital family. Now we were forced into a difficult situation of fighting on the ground that Gauri was never ill except for the initial phase.

As her lawyer, I was worried about the other complications in the case. First, the child was not too fond of her mother and yearned more for her father. Preference of the child is an important consideration in deciding custody cases. Second, the husband may examine the doctors who issued the prescriptions as witnesses. Third, brief research indicated that the medications in question are often prescribed in cases of severe mental illness. It should be qualified, however, that neither Gauri nor her husband knew the nature of her illness and everyone, referred to her illness as ‘depression;’ a point in our favour. Fourth, I worried that Gauri would have to undergo a medical examination to prove her bonafides to the court.

Gauri attended court regularly and the current psychiatrist scaled down her medication considerably. He said that Gauri was in relatively good health now and that the natal home had given her a sense of security. Asked about her earlier prescriptions of heavy dosage of drugs, he said that the ill treatment in the marital home could have exacerbated her illness. He also hinted at the malpractice of the earlier psychiatrist who could have prescribed these drugs on the basis of information given by her in-laws.

Evidence

Preparing for Gauri’s cross examination was the most difficult part. Her memory of early years – marriage, honeymoon, pregnancy and other events – was very vague. We had to reconstruct every detail with the help of her parents and in the process foreground some facts but hide others. It was important to camouflage the fact that she had discontinued her education several times. We advised her to depose that she had discontinued as she was forced to take up domestic chores to prepare for her marriage. Though it is common for girls to discontinue their education, in Gauri’s case one had to be cautious as such a fact could be read as a result of her illness. Similarly she was asked to make lists of her jewelry and sets of clothes, her chores in the household and relevant dates and places. She was taught to deny all knowledge about consultations with her doctors and the contents of the prescriptions. Here we were really walking on thin ice.

In a cross-examination, crucial counter-evidence is collected when the witness forgets, fumbles and slips on the facts. The purpose of a cross-examination is to intimidate the witness so that she lapses into confusion. I was not sure if Gauri could handle the extreme tension of a cross-examination. Gauri was cross-examined in two sessions of three hours each. She was confronted not only by the prescriptions but also with her diary and every scrap of paper that she had left behind. Apparently, Gauri had forgotten all about these papers in which she made notes on her illness, medications and queries to the doctors. When confronted with these papers for the first time, she was so petrified that she admitted some and denied some. But thankfully, she survived the intense cross examination with minimal damage. Her parents also deposed well in her support.

In his defense the husband examined himself as a witness. In his cross examination we elicited from him that that he pleaded no specific instances of Gauri exhibiting abnormal behavior; that the prescriptions carried no diagnosis, that the medicines could very well be prescribed for general health. He also admitted that he made no efforts to get his wife treated which was crucial evidence in our favour.

The Unexpected Turn

As is common to custody cases, the child was interviewed by the Judge. We did our best to coach the child, but were very unsure. To our pleasant surprise, the child spoke fondly about her mother and preferred to live with her. Apparently, the child had developed a certain intimacy with his mother during the trial period. We filed her progress reports to show that she was attending school regularly and also doing well in her studies.

Following this, the husband declared that he had closed his evidence. This turned into the astonishing conclusion to the trial. He did not examine his parents, friends nor did he

examine the three psychiatrists who had issued the medical prescriptions. The case in other words had abruptly come to an end. Without the evidence of the doctors, the prescriptions carried no evidentiary value. The absence of corroborating evidence for the husband considerably weakened his case. In these circumstances the issue of Gauri’s medical examination did not arise. Not revealing the fact that Gauri was ill and on medication throughout her marriage had worked to her advantage. We argued that the husband had leveled vague, uncorroborated and unsubs-tantiated allegations against Gauri and failed to prove her illness or her incapacity to be a mother.

In the face of the bleak evidence presented by the husband, we expected the Judge to give us a favourable order. But the Judgement was half hearted. The Judge gave Gauri the right to reside with her child only temporarily. Reading between the lines of the judgment, it was clear that the Judge was influenced by the unproved medical prescriptions. Even though there was no remark on her illness or the question of her capacity, the Judge used the husband’s status as the natural guardian to deprive Gauri of the custody.

Questions and Dilemmas

This trial can be analysed in many registers. Here, I wish to raise some questions about the quality of women’s engagement with the law. Gauri was ill at her marital home but recovered considerably when she moved out of that context. Her illness evidently was contextual, temporary and curable. The Supreme Court has held that a mere diagnosis of mental illness is not enough; only the degree of incapacitation is relevant in deciding such cases. Despite such precedents, legal practice often operates by setting up rigid categories of illness or health, especially in cases of mental illness. Gauri’s mere admission that she consulted a psychiatrist in the early years of her marriage cast a shadow on her claim for custody. Her illness, however inadequately proved by the husband, influenced the Judge against her capacity. What was primarily on trial was the belief that a mentally ill woman was ‘mad and incapable’ and a burden and risk to family life. In the trial, pitted against one another were the ‘fragility’ of the child and the ‘unpredictability’ of the mother, both being essentialised unproblematically. Nowhere was there a possibility of arguing that the child staying with the mother can be important for the latter’s health and wellness. It was only the “best interests of the child” that had to be argued and decided while the harassment and illness of the mother was only incidental. The function of the law was clear: except adjudicating rights claims it will not undertake any further responsibility of the wellbeing of its subjects.

Any trial demands intensive preparation and witnesses are generally very stressed about their performance in the witness box. Here, the stress was multi-fold. Gauri was not always well and we worried that the tension would trigger her illness. The trial demanded a high degree of clarity and consistency of performance over an extended period of three years. Gauri partly succeeded because she worked hard, managed her illness, was alert to potential confusions, and displayed a rare courage to fight the confidence of her able-bodied husband. There was always a lurking fear that she could lose the case and be forced to hand over the child to her husband. The legal battle works only as a win-lose formula. Inability to produce the right kind of evidence is read primarily as the untruthfulness and dishonesty of the claim that one is making. What would ‘losing a case’ mean for a woman like Gauri who was already victimised and castigated for her illness? Would not the ‘verdict’ of the legal procedure further damage her sense of self and well-being?

It is important to be aware that in appealing to the law one is consenting to the procedures which often produce enormous anxiety and helplessness. This gets exacerbated because the ‘family’ is viewed as a non-contractual domain and hoarding of evidence in the form of documents and witnesses is often seen as antithetical to the essence of this institution. Further, upon the breakdown of a marriage, women are rarely in hold of the right kind of such resources. Mental illness significantly adds to the existing list of limitations that women face in the courts. Yet a sizeable number of women appeal to the courts seeking justice to the cruelty and injustice that they face in their relationships, partly aware and unaware, of the hardships of this project. Many upon entering the precincts of the court hall either withdraw or ‘compromise’ their cases. A few, however, go through the entire trial. It is in this category of contested cases that crucial case law is produced that attempts to challenge inflexible notions of able and disabled bodies and their respective capacities and incapacities.

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As an American India Foundation Service Corps Fellow at the Centre for Advocacy in Mental Health (CAMH), I visited forty-four mental health facilities in Karnataka, Maharashtra, Tamil Nadu, and the Delhi Region. The goal of this study was to determine whether law and public policy inhibit the provision of community-based services in India, and if they do, to recommend ways to overcome or eliminate these barriers. This goal was achieved by analyzing mental health facilities and the laws governing their operations. To understand the functioning of these facilities, I documented the following aspects of their operations: infrastructure; admission/discharge procedures; relationships with governmental authorities; ward access policies; and inpatient/outpatient services. I then examined this data to determine whether there are any legal or public policy barriers that interfere with the provision of community-based mental health services. Insights were drawn, where appropriate, from the Convention on the Rights of Persons with Disabilities and laws regulating mental health services in other countries. This study concludes that there are currently a number of significant barriers to the provision of community-based mental health services in India.

The entire study, including findings, analysis, conclusions, and recommendations, is available on CAMH’s website at http://www.camhindia.org/ghpurc.html.

One subject the study examines is the use of force by rehabilitation centres in India. Both the physical infrastructure and the admissions policies of some rehabilitation centres provide evidence of force or involuntary treatment.

The infrastructure of force is apparent at a significant number of rehabilitation centres. Of the mental health facilities that I visited, twenty-eight are run by nineteen separate rehabilitation centres. Eight of these nineteen rehabilitation centres have at least one facility that is essentially indistinguishable from the residences that surround it. These facilities are generally of the same scale as their neighbors and they do not have any physical characteristics – other than, in some cases, a sign – that mark the building as a mental health facility.

A surprising number of rehabilitation centres, however, have charac-teristics that are associated with involuntary institutions. For example, five facilities are surrounded by fences that are topped with barbed wire. Similarly, seven rehabilitation centres have facilities where locking mechanisms are used to prevent residents from exiting the facility or a portion thereof. I would therefore describe a significant portion of the rehabilitation centres that I visited as locked or closed facilities.

Evidence of the involuntary nature of some rehabilitation centres is also clear from their admission policies. Although the admission procedures at rehabilitation centres varies greatly, one commonality is that, for the overwhelming majority of rehabilitation centres, psychia-trists and the families of applicants play key roles. For fourteen providers, a psychiatrist plays a central role in the referral process. Thirteen providers stated that residents are brought to their facility by family members.

Eleven of the nineteen rehabilitation centres utilize an application form in their admission procedure. The application forms generally ask for information regarding the applicant’s personal and medical history. One interesting variable is who is required to sign the application forms. Only six of the eleven applications include space for the signature of the prospective resident. Of the application forms that are required to be signed by the prospective resident, half of them also include space for the signature of a guardian or family member. All five of the applications that do not include space for the resident’s signature require a family member to sign the application form. Six application forms include space for the signature or endorsement of a psychiatrist.

The description of the admission procedure for one rehabilitation centre highlights how a prospective resident’s family is often placed at the center of the admission procedure: the family contacts the provider by telephone or email; the family visits the campus; the family provides the rehabilitation centre with medical reports if the reports are available; the family meets with staff and the treating psychiatrist to discuss the period of stay and the family’s expectations; and the family fills out the application form. This raises the question of what happens when the family’s interests are contrary to, or not fully aligned with, the prospective resident’s interests. It would

regarding voluntary hospitalization by providing readers an example of a past client of his who had a history of depression and had begun speaking about suicide rather often.

Throughout the book, the individual autonomy framework has been expanded to include the community and family that the client is part of because of Doherty’s argument that focusing primarily on the client at the exclusion of family and community makes it less likely that clients will think about the consequence of their actions (or inactions) on others, and that it is unnatural to expect people to become pure individualists at the cost of the community they belong to. Emerging from the same framework, Doherty asks his client (who is threatening suicide) to talk about the impact his death is likely to have on the different members of his family and following this conversation, he asserts that suicide is not an option. Doherty noticed that his client seemed to like the phrase “not an option”, perhaps because it reminded him that suicide was a choice in his hands just like many other choices and they had to seek out those other choices (choices to live) before he chose to die. Just the way a therapist has to seek choices that promote autonomy rather than the ones that only promote self-satisfaction.

It is important to remember that nobody is “forced to hospitalize”, we “choose” to hospitalize. Like all therapeutic choices, we need to ensure that our choices were aided by therapeutic goals and not by fear. It is also important to remember that promoting life is a therapeutic goal that has to be achieved in collaboration. Force is antithetical to life.

Doherty and his client agreed to a verbal pact – that the client would tell Doherty when he was thinking about suicide and Doherty would ask the client for permission before choosing hospitalization. The client did keep good on his promise and placed an extremely agitated call to Doherty, saying he had taken a lethal dose of his antidepressant medication and had called just to act on his promise. Doherty was definitely agitated and felt like it took all his courage to not call for an ambulance right away but he knew he had to keep his end of the promise. Calling this ambulance may have enhanced his credibility among his colleagues but for the client, Doherty would lose credibility forever.

Doherty continued to speak to his client, eventually telling him that he had the right to decide his own fate but that Doherty was unsure if he was in the frame of mind to make a decision. Doherty reminded the client of the fact that life-altering changes are not to be made when one is depressed or when one is extremely happy. A simple assertion by the therapist that cut past the noise about morality and instead just asked the client to think about suicide as a decision, which he had to choose to act upon or not. The client argued on behalf of suicide, saying that life would never really get better. Doherty acknowledged that the client could be right but he wanted to speak more about it and could not allow the client to make a decision in this frame of mind. He asked for permission to call the hospital and this time the client said yes.

Doherty looks back at this decision and realizes that he had lost precious “rescue” time when he thinks of the fact that the client had taken a lethal dose and the dose was taking effect as they spoke, but he chose to support the client’s autonomy. He was glad that the client eventually agreed to call the ambulance and Doherty was glad that he did not have to stand before a court to explain why he chose autonomy over life. There is a fine balance between supporting autonomy and possible death, and shunning autonomy to choose life. Courage as a virtue, coupled with good judgment helped Doherty to sail through a very stormy sea.

He writes very movingly about the need for therapists to be honest about their failure of nerve, about their fear of being held responsible for death, so that there can be more space for conversation about how to promote life. He cautions about how ‘failure of nerve’ rarely lets us see clients outside our ‘invisible veil of distortions.’

Doherty’s argument made me think more actively about decisions that clients want to make, such as suicide, and how we need to be able to encourage a more coherent decision making than crumble under the fear of asking uncomfortable questions or making uncomfortable decisions (ones that contradict what we were taught). Also, that we need to have the courage to confront our inner lives while we work with our clients and help them confront theirs. I like the parallels that Doherty draws between surgeons and therapists – just as surgeons have to act with special courage during emergency operations, therapists are called to be brave about their inner lives and act with morality in tough situations.

I like how Doherty concludes his chapter on ‘Courage’ - ‘Firmness of spirit is an acquired virtue that as therapists we are called to embrace and cultivate throughout our careers, for the good of our clients and the community, and for the enrichment of our own humanity.’

Kudos to that.

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