On the State of Lunacy and the Legal Provision for the Insane by John T Aldridge - HTML preview

Allowing that family prejudices and pride were of more moment than we are willing to admit, yet they should not suspend the enforcement of registration; for it must be remembered that the insane stand in a different class to patients suffering from any bodily infirmity. They forfeit by their malady the power to act in their own affairs; or their actions, if their mental disorder has been as far as possible concealed, are at any time during their life or after their death, liable to be called in question on the plea of insanity. It is undoubtedly, then, the province of the law to interpose on their behalf for the interests both of themselves and of others. The law is remiss if it permit a mentally unsound person to act on his own behalf, or others to act for him, without its sanction; and is it, we ask, consonant with English jurisprudence to detain a man against his will, in other words, to imprison him, even in his own house, and under the authority of his own immediate relatives? As soon as insanity has declared itself, so soon, we maintain, should both the person and the property of the sufferer come under the protection of the law; and this protection ought to be promptly and cheaply afforded. Interference with a mentally disordered individual had better be premature than be delayed until by some actions his interests, his property, or his condition suffer. It is better for him to be found a lunatic, or, to avoid a painful and objectionable term, be adjudged to be unable properly to take care of himself and his affairs, and to be deprived for a time of liberty of action,—than that he should be treated as a sound man, and be suffered to damage his own prospects and property, and to expose himself or family to future litigation on account of his actions.

When a violent or sudden death, or a suicide occurs, be it in whatever class of society it may, there is no escaping the requirement of the law, however painful be the circumstances the inquiry evokes; the coroner must hold an inquest, and the whole matter be publicly investigated before a jury. Family pride and prejudice, however much they may be offended, are not allowed to stay the inquiry. Why should they then be suffered to stand in the way of a simple recognition, made not through the intervention of a public court, but as secretly as possible, of a disorder, which places the sufferer in a state of social and civil death, and perhaps more seriously deranges his pecuniary affairs than even natural death itself?

To repeat, the law is bound to watch over the interests of the insane, by seeing that they are properly provided for, whether in their own houses or elsewhere. No difference of opinion will occur to the proposition where the insane are placed with those who are directly or indirectly advantaged by their detention. To meet the case of such, indeed, an attempt to secure a legal recognition and protection has been made by 16 and 17 Vict. cap. 96. But the same unanimity will be wanting when it is proposed to demand a return, and to sanction the supervision by public functionaries, of patients residing in their own homes: and although we have endeavoured to show good reasons why such a requirement should be made,—and the arguments could be enforced by illustrations proving that, both among rich and poor, insane persons are not satisfactorily, nay more, not even kindly treated by their own relatives,—yet Lord Shaftesbury stated it to be his persuasion (Evid. of Com. p. 35) that public opinion is not ripe to introduce a new power to enter domestic establishments. Nevertheless, if public opinion be not ripe for such an innovation, “it would seem (to employ Sir Erskine Perry’s query, No. 304, as an affirmation) that whenever a person is put under surveillance, it is not too much for the legislature to require information of that fact;” that is to say, if “domestic rights” must yet for a time be allowed to hide domestic wrongs to the helpless victims of mental disease, by denying them the protection of the law they live under, they should not avail against their being reported or registered.

However, in the case of those who are obliged to seek for parochial aid, the domestic impediments to the institution of a public officer to inspect the condition of their lunatic relatives, could not be suffered to operate.

Now the principle of requiring a compulsory return and visitation of all insane persons confined in their own homes or in lodgings, is not new. The Belgian Lunacy Commissioners recommended in their Report on the amelioration of the Lunacy Laws, in 1842, that no person should be confined in his own home, excepting after an examination by two physicians, and a certificate from them of the necessity of the restraint upon his liberty. The certificate was to be handed to the “juge de paix,” who might order other visits; and if dissatisfied with the arrangements for the care and treatment of the patient, might require others to be entered into. The family medical man was likewise charged, under a penalty for non-performance, to send in a quarterly report of the state and condition of the patient.

With the same object in view of obviating abuses in the domiciliary treatment of the insane, M. Bonacossa, the chief physician of the Turin Asylum, proposed the following clause to the Sardinian Lunacy Code:—“That, as patients are often kept in confinement in their own homes or in the houses of private persons to their detriment, it shall be made imperative on all individuals retaining an insane person in their house, to report the fact to the syndic of the commune, or to the intendant of the province.”

The British legislature has taken some steps in the same direction, but the fear of encroachment upon individual liberty has conspired to render its comparatively feeble attempts to provide for the due protection of single patients nugatory. By the Act of 1829, every medical man who had been in charge of a private patient for eleven months was required to send the name of the patient, under a sealed cover, to the Lunacy Commission; but this document could only be opened upon application to the Lord Chancellor. Moreover, the fixing of the period of eleven months led to the transfer of the poor lunatics from one person to another within that period, so as to render the requirement of notice of his existence and detention null and void. By the 8 and 9 Vict. cap. 100, this enactment was repealed, and by sect. xc. it was ordered that no person, except one who derived “no profit from the charge, or a committee appointed by the Lord Chancellor,” should receive a lunatic into his house, to board or lodge, without the legal order and medical certificates, as required for admission into a registered house or asylum; and that within seven days after the reception of a lunatic, the person receiving him should transmit to the Commissioners copies of the order and medical certificates, together with a notice of the situation of the house, and the name both of the occupier and of the person taking charge of the patient. It further ordered that every such patient should be visited at least once in every two weeks, by a duly qualified medical man, who should also enter a statement after each visit of the state of the patient’s health, both bodily and mental, and of the condition of the house. With a view to secrecy, the same Act ordained (sect. lxxxix.) the institution of a private committee of three of the Lunacy Commissioners,—to whom alone the register (sect. xci.) of such patients was to be submitted for inspection,—who should visit those registered single lunatics, report upon them in a private book (sect. xcii.), and, if desirable, send this report to the Lord Chancellor, who could order the removal of the patient elsewhere (sect. xciii.), if his state was proved to be unsatisfactory. This legal apparatus completely failed to attain the desired object: it was left open for the person receiving the patient to consider him a lunatic or not, and to report him or not at discretion; for no penalty hung over his head for disobedience to the Act. So, again, the three members of the “Private Committee” could neither derive official knowledge of the single patients they ought to visit, nor find time or opportunity to carry out the visitation of those reported to them, living as they did scattered throughout the country.

The last-named Act, having thus failed in its objects, was much varied by that of 1853 (16 and 17 Vict. cap. 96), the last enacted, which was less ambitious in its endeavours to deal with the single private lunatics. By this Act the private Committee was abolished, and any member of the Lunacy Commission was empowered to visit those single cases reported to the Board; at least one visit a year being required. But the provisions under this Act are very ineffectual, both for the discovery and for the protection of the patients. The Commissioners are directed to visit those only who are placed under certificate and known to them; and although every person taking charge of a lunatic or an alleged lunatic is required (by sect. viii.), before receiving the patient, to be furnished with the usual order and medical certificates, and (by sect. xvi.) to make an annual report of his mental and bodily condition to the Commissioners during his residence in his house, yet there are, in the first place, no means provided for discovering the existence of the lunatic unless the person receiving him choose to report it; and again, the requirement as to the certificates and order may be complied with, but no copy be sent to the Commissioners; and lastly, it is left to the will and pleasure, or to the honesty of the individual receiving the case, whether it is to be considered as one of lunacy or not.

It is needless to attempt to prove that a law so loosely framed must be inoperative. No person who has given a thought to the subject but knows that there are many hundred, nay, in all probability some two thousand—as we have surmised in our estimate (p. 5), single private (not pauper) patients in England: yet, as Lord Shaftesbury acquaints us in his evidence (Committee on Lunatics, p. 34), only 124 such patients are known to the Lunacy Board. Some few of the many others may be under certificates, though unreported; still the great majority are, there is no doubt, detained without attention to any legal formalities or legal sanction, and for the most part treated as “nervous patients,” and as therefore not amenable to the Commissioners in Lunacy. The existence of the lunacy is thus disguised under the term of ‘nervousness,’ and the patients robbed of the protection which the law has rightly intended, and yet signally failed to afford.

The noble chairman of the Lunacy Commission, in the course of his able evidence before the “Committee on Lunatics” (1859), has given some admirable suggestions for the amendment of the law in order to bring the so-called “nervous patients” under the cognizance of the Commission, and to obtain a more complete knowledge of the number and position of the many lunatics detained in private houses.

According to the existing law (Evid. Comm. p. 33), it is only, says Lord Shaftesbury, “where a patient is put out to board with some person who is benefited by the circumstance that the Commissioners can, upon application to the Chancellor, obtain access to a house where they have reasonable ground to believe there is a patient restrained, and who ought to be under certificate. But not only, in the first place, is it difficult to ascertain where such patients are, but it is also difficult afterwards, as we must have good testimony to induce the Chancellor to give us a right to enter a private house, and make an examination accordingly.” In reply to queries 303, 304, 315, 318, 320 and 325, his Lordship insists on the necessity of the law interposing to compel persons who receive any patients whatever for profit, whether styled nervous or epileptic patients, to give notice of their reception to the Commissioners in Lunacy, who should have the power to visit and ascertain their state of mind, and determine whether they should or should not be put under certificate as lunatic. If they were found to be only ‘nervous’ persons, the Commissioners would have nothing to do with them.

To give these suggestions a legal force, his Lordship produced the following clauses as additions to the Lunacy Act (Evid. Comm. query 432, p. 43):—

“Whereas many persons suffer from nervous disorders and other mental affections of a nature and to an extent to incapacitate them from the due management of themselves and their affairs, but not to render them proper persons to be taken charge of, and detained under care and treatment as insane; and whereas such persons are frequently conscious of their mental infirmity, and desirous of submitting themselves to medical care and supervision, and it is expedient to legalize and facilitate voluntary arrangements for that object, so far as may be compatible with the free agency of the persons so affected, be it enacted, as follows:—

“Subject to the provisions hereinafter contained, it shall be lawful for any duly-qualified medical practitioner or other person, by his direction, to receive and entertain as a boarder or patient any person suffering from a nervous disorder, or other mental affection requiring medical care and supervision, but not such as to justify his being taken charge of and detained as a person of unsound mind. No person shall be received without the written request in the form, Schedule —., to this Act, of a relative or friend who derives no profit from the arrangement, and his own consent, in writing, in the form in the same schedule, the signatures to which request and consent respectively shall be witnessed by some inhabitant householder.

“The person receiving such patient shall, within two days after his reception, give notice thereof to the Commissioners in Lunacy, and shall at the same time transmit to the Commissioners a copy of the request and consent aforesaid. It shall be lawful for one or more Commissioners, at any time after the receipt of such notice aforesaid, and from time to time, to visit and examine such patient, with a view to ascertain his mental state and freedom of action; and the visiting Commissioner or Commissioners shall report to the Board the result of their examination and inquiries. No such patient shall be received into a licensed house.” Lord Shaftesbury proceeds to say that by this plan “every person, professional or not, who receives a patient into his house, or attends a patient in such circumstances, should notify it to the Commissioners; but we should not require them to notify it until after three months should have elapsed, because a patient might be suffering from brain fever, or a temporary disorder; but I would say that any person accepting or attending a patient in these circumstances should notify it to the Commissioners, after three months shall have elapsed from the beginning of the treatment.”

In the after part of his evidence (Query 921, p. 100), his Lordship desired to supply an omission in the preceding clause, viz. to make it compulsory on a medical man attending a nervous patient, and not only the person receiving one, to communicate the fact to the Commissioners, so that they might go and see him, and form their own judgment whether he should or should not be placed under certificate.

There is much that is excellent in the clauses suggested, yet some improvement is needed in their wording. Thus it is provided that a medical practitioner, or a person under his direction, may receive a ‘nervous’ patient, and the subsequent provisions are made in accordance with this principle, as though only medical men could receive such patients, or that they alone were amenable to the laws regulating their detention. Sir Erskine Perry detected this oversight (Query 434), and Lord Shaftesbury admitted the want of sufficient technicality in the drawing up of the clause.

Again, we do not conceive there is adequate reason for postponing the report of a case until three months after the commencement of the treatment; a delay, not imposed, indeed, under the clause as propounded, but implied in his Lordship’s subsequent remarks. To refer to the class of patients mentioned as properly exempt from a return to the Lunacy Commission until after three months have elapsed:—a case of so-called ‘brain fever’ is not likely to be sent from home to board with a medical man or other person during the existence of the acute malady commonly known under that term. On the other hand, genuine cases of acute mania get called by the same name, and such certainly ought to be reported to the Commissioners before the expiration of three months. Besides, the delay to notify ‘temporary disorder’ for so long a time is likely to be injurious and to defeat the object of the clause. Delirium or mental aberration lasting for three months is something more than a symptom of any one commonly recognized bodily disease, and rightly deserves the designation of madness; and, if this be the case, it also claims the supervision of the Commissioners or other duly appointed officers over its management, particularly when this is undertaken, with the object of profit to the person treating it. Moreover, the delay proposed involves an idea not flattering to the discernment and the powers of diagnosis of the members of the medical profession; for its intent, we take it, is solely to prevent giving unnecessary trouble and distress to all concerned, in having to send a notification of the disorder, while yet unconfirmed, to the Commissioners: an annoyance which ought never to happen; for every medical man should be able to distinguish the delirium of fever, of drinking, or of other corporeal conditions it is sometimes linked with, from insanity; and it would be very discreditable to the medical skill of any one not to find out the true nature of the case long before the expiration of three months. Further, for the sake of promoting early and efficient treatment, the notification of disorder, whether called ‘nervous’ or mental, should be given before the end of three months. The change from home to board with a medical man may be all that is desired for a ‘nervous’ patient; but if it be a case of recent insanity, something more than solitary treatment at home or in a private lodging is essential. The evils of the last-named plan are largely illustrated in the evidence of Lord Shaftesbury himself, and of other witnesses before the Select Committee. It is consequently desirable to have cases, under what designation soever they are received, reported before the close of three months, so that the Commissioners may see them and determine whether or not the conditions under which they are placed are conducive to their well-being and recovery, and may give their recommendations accordingly.

The proposition appended by the noble Earl, to the effect that every medical man attending a ‘nervous’ patient should communicate the fact to the Lunacy Commissioners, is most important, and in its scope approaches that of enforcing a registration, as advocated by ourselves: for we presume that his Lordship would desire the paragraph to be so worded, that the notice should be demanded from the medical attendant, as well in the case of a lunatic or alleged lunatic as in that of a so-called ‘nervous’ patient.

A similar defect attaches to the clauses proposed as to those actually in force under existing Acts; that is to say, the want of means of enforcing them. By the Act 8th and 9th Vict. cap. 100, sect. xlv., it is made a misdemeanour to receive or detain a person in a house without a legal order and medical certificates; and by sect. xliv. it is declared a misdemeanour to receive two or more lunatics into any unlicensed house. These clauses are, however, valueless in preventing the abuses they aim at checking; for, as so often said before, alleged and undoubted lunatics are perpetually received by persons into their private houses as ‘nervous’ patients, mostly without certificates, or, if under certificates, unreported to the Commissioners.

No solid argument is conceivable, why a person having two lunatics under charge should be liable to punishment for a misdemeanour, whilst another may detain one with impunity. The penalty should be similar in each case. The same legal infliction, too, should, we think, be visited alike upon the friends putting away a relative under private care and upon the individual receiving him. It might also be rendered competent for any relative or friend to call upon those concerned in secluding, or in removing the patient from home under restraint, to show cause for so doing; and the production of the medical certificates and of a copy of the notification sent to the Commissioners, with or without a certificate from such an officer as we propose as a district medical inspector, should serve to stay proceedings. The detention or the seclusion of a person, whether at home or elsewhere, contrary to his will, and at the sacrifice of his individual liberties and civil rights, appears to us tantamount to false imprisonment, and an act opposed to the principles of English liberty, whether it be perpetrated by relatives or strangers, if done without the knowledge and sanction of the law and of its administrators.

But whatever amendments be introduced, we hold them to be secondary to a complete system of registration of lunatics and ‘nervous’ patients rendered compulsory upon the medical men attending them, or taking them under their charge, and likewise upon the relatives, or, in the case of paupers, upon the relieving officers or overseers of their parish. The family medical attendant appears the most fitting person to make a return of the sort: his professional knowledge must be called in to testify to, or to decide on, the nature of the disease, and the fact can be best communicated by him in his medical capacity. The Lunacy Commissioners of Massachusetts had recourse to the physicians living in every town and village of the State; and it was only by so doing that they were enabled to arrive at an accurate knowledge of the number of the insane, and to correct the statistics gathered through other channels, which might, at first sight, have appeared ample to their discovery.

Further, as already noted, we advocate another step in conjunction with registration; for we would convey the notification of the existence of the alleged insane or nervous patient primarily to the district medical officer, and then call upon this gentleman to visit the patient, with every deference to family sensitiveness and necessary privacy, in order that he may make a report on the nature and character of the malady, and the conditions surrounding the patient, to the Commissioners in Lunacy. The immediate visitation of a reported case by such a skilled officer would be of advantage to the patient, to his friends, and to the Commissioners. Without overruling or controlling the medical attendant or others, his advice on the wants of the case would be useful, and he could fulfil one purpose proposed to be effected by a visit from the Commissioners, viz. that of signifying whether the patient should be placed under certificates or not; his opinion being subject to revision by the visiting Commissioners, should the nature of his report appear to them to call for their personal examination of the case. If, again, medical certificates were required, these might be countersigned by the district officer in question, after a separate examination, and an additional protection be thus applied against illegality in the legal documents required to sanction the patient’s restriction or detention. This plan would likewise afford a check to the transmission to the Lunacy Board of those insufficient certificates which at the present time involve such frequent trouble. But, although the district officer’s signature or certificate might by its presence be held to increase the validity of the evidence for a patient’s insanity, yet its absence, where his opinion differed from that of the medical men called in to sign the legal certificates, should not operate as a bar to dealing with the alleged lunatic as such, until an examination by one of the Board of Commissioners could be had; and therefore the registrar should be bound to transmit the order and certificates, when properly filled up, accompanied by his own report of the case.

Supposing these provisions just sketched to be carried out, and that an individual is found lunatic by his immediate medical attendants, by the official registrar, a perfectly disinterested person, and, sooner or later by the Commissioners, there certainly appears no reason why the lunatic himself, or any officious friend or sharp lawyer in search of business, should be able to challenge by legal proceedings a decision so cautiously arrived at by so many competent persons. The determination of a trial by jury we hold to be less satisfactory, and less likely to be in accordance with fact; so easy is it in some instances for a clever counsel to frighten witnesses, to get fallacious evidence, and to represent his client’s cause, and appeal to the passions of the jurors of very miscellaneous mental calibre, often with more feeling than judgment, and generally to use all those arts which are thought legitimate by the practitioners of the law to win a verdict.

There is one subject well deserving notice; one which acts as a stumbling-block to the treatment of mentally disordered persons, and will also do so, more or less, to registration; viz. the present legal necessity of placing all in the category of lunatics. The practical questions are, whether this proceeding is necessary, and if not, whether the present form of the order and medical certificates cannot be so modified, as to lessen the objections of friends to place their suffering relatives under the protection of the law and its officers; we should add, to remove the objections of patients themselves; for it is irritating to the minds of certain classes of the insane to know that they are accounted lunatics by law equally with the most degraded victims of mental disorder with whom they may find themselves associated; and it offers an impediment at times, as those conversant with the management of asylums know, to patients voluntarily submitting themselves to treatment.

The adoption of two forms of certificate, one for persons found to be of unsound mind, and the other for the class of ‘nervous’ patients, would undoubtedly involve some disadvantages. It would be the aim of all those in a position to influence opinion, to obtain the registration of their insane friends under the ambiguous appellation of ‘nervous’ patients; and this could be met only by placing it in the power of an officer attached to the Lunacy Commission to make the decision, after an examination of the patient, respecting the nature of the certificate required. Perhaps the examination to be made by a Commissioner, according to the scheme propounded by Lord Shaftesbury (p. 161), is intended, though not said to be so, to serve the purpose referred to; otherwise it would be a defect in his Lordship’s plan, that no person is empowered to discriminate the individuals he would legislate for as ‘nervous’ patients not properly the subjects for asylum treatment, from those mentally disordered persons who are so.

Although the introduction of a modified or mitigated form of certificate of mental unsoundness, besides the one now in use, may be open to the objection mentioned, and to others conceivable, yet it would, on the other hand, possess certain advantages, and would, among others, be certainly an improvement upon the present state of things, by promoting the registration of numerous cases now unknown to the administrators of the Lunacy Laws.

It would be impossible to draw the line rigidly between really insane persons and those suffering from temporary delirium, or ‘nervousness.’ No ready cut and dried definitions of insanity would serve the purpose, and the discrimination of cases in order to their return as ‘lunatic,’ or as ‘nervous,’ must within certain limits rest upon definitions imposed by law, and beyond these to common sense and professional experience. With such criteria to guide, no sufferers from the delirium of fever, of alcoholism, or other kindred morbid state, and no eccentric personages whose peculiarities are not necessarily injurious to themselves, to others, or to their property, should be brought within the operation of the laws contrived to protect positive mental disorder. They would not occupy the same legal position as those classes proposed to be under one or other form of certificate; for, in our humble opinion, all those under certificate, whether as insane or as ‘nervous’ patients, should be under like legal disabilities in the management of themselves and their affairs, and partake of equal legal protection. In the preamble to the clauses suggested by Lord Shaftesbury, the nervous disorder or other mental affection is very properly supposed to be of a nature and extent to incapacitate the sufferers from the due management of themselves and their affairs; that is, that they are to be rightly placed under similar civil disabilities with the insane;—a position, which could, moreover, not be relaxed even in favour of those voluntarily placing themselves under treatment, without giving rise to much legal perplexity and quibbling. But this last-named result we have some apprehension might ensue, if the next sentence of the clause to those quoted were retained: forasmuch as, farther to define the class of persons to be legislated for, this sentence requires that their disorder shall not render them proper persons to be taken charge of and detained under care and treatment as insane; a condition, which seems to exclude them from the catalogue of insane persons in the eye of the law, and therefore to relieve them from the legal disabilities attaching to lunatics; but, perhaps, it is from ignorance of law that we cannot conceive how it is proposed to provide for the care and official supervision of persons alleged to be incapacitated from the management of themselves and their affairs, and at the same time to pronounce them unfit to be dealt with as insane.

The Scotch Asylums Act (1857) contains a clause (41st) to authorize the detention of persons labouring under mental aberration, in its earlier stages, in private houses, under a form of certificate set forth in Schedule G, wherein the medical man certifies that the individual in question is suffering from some form of mental disorder, not as yet confirmed, and that it is expedient to remove him from his home for temporary residence in a private house (not an asylum), with a view to his recovery. This plan of disposing of a patient is permitted to continue for six months only. By some such scheme as this, it seems possible to bring the sufferers from disordered mental power within the cognizance of the public authorities appointed to watch over their interests, and at the same time to rescue them from being classed with the inmates of lunatic asylums, and from the frequently painful impression, in their own minds, that they are publicly considered to be lunatics. To avoid disputes and litigation, however, such patients should, even when under that amount of surveillance intimated, be debarred from executing any acts in reference to property, which might be subsequently called into question on the plea of their insanity.

According to the present state of the law, there is no interme