CHAP. VIII.--REGISTRATION OF LUNATICS.

We are fain to look upon a complete registration as a remedy to many

admitted evils affecting the welfare of lunatics, and we may add, of

idiots also.

Lunacy may be regarded as a form of "civil death;" it deprives its

sufferer of his rights as a citizen; subjects him to the loss or

restriction of liberty; disqualifies him from many civil privileges, and

invalidates his powers of dealing with property and of executing legal

documents. Yet not unfrequently are lunatics, particularly among the more

wealthy classes, placed under the penalties of their condition without

the knowledge and authority of the Officers of the State, by whom alone

can such penalties be legally enforced. An individual, we say, is often

deprived of his liberty and of the control over his affairs, at the hands

of relatives or friends, and often indeed transferred to the house of a

stranger, and there subjected to surveillance and repression; and all this

done against his will, and, what is more, against the principles of

English law and English freedom.

Elaborate provision is made and still further attempted to prevent the

unnecessary detention of persons in asylums, whose cases have been

regularly reported to the public authorities; but no steps have as yet

been taken to discover unreported cases of alleged lunacy or private cases

treated singly; no enactment contrived to bring within the knowledge of

any Government-board the number of persons, year by year attacked with

insanity, and thereby, for a longer or shorter period, disqualified from

the exercise of their civil rights. To our mind, this state of things

proves a grievous defect in the law of lunacy. Every person has an

inherent right to the protection of the law; yet practically, if insane,

he does not at all, as a matter of course, obtain it: his malady and

position may very probably be unknown, and he may be helpless, or

otherwise debarred from making it known. Were a machinery contrived to

report it to legally constituted authorities, the sufferer would have the

satisfaction of feeling that he was dealt with according to law in the

process of the treatment he was subjected to.

Were each case of lunacy systematically registered, it would, we believe,

frequently save legal contests. Documents dealing with property are often

matters of litigation, on the plea of the insanity of the person executing

them, and enormous costs are incurred on the one side to substantiate, and

on the other to overthrow the plea. Evidence collateral and direct is

hunted up, probably years after the date of the alleged state of insanity;

and often enough it comes out, or is decided by the jury, that the

individual was once insane, or was so at the date of executing the

document in dispute. Now, in such a case, had the insanity which has been

so laboriously, tediously and expensively established as having occurred,

been registered in a public office at the time of its occurrence, how

great would have been the gain to the feelings, the interests, and the

convenience of every person concerned in the suit! If the document had

been executed during the period the individual was registered as of

unsound mind, the production of the register alone would have availed in

proof of its invalidity. The whole litigation, indeed, might have been

prevented by a search of the register before the action was begun.

In the introductory chapters on the statistics of insanity, we have

remarked on the very incomplete records of the prevalence of the disease,

and on the consequent impossibility of discovering the actual number of

the insane, and of determining the question of their increase in the

community. Yet it will be granted that such statistics are of great

importance in a civilized country, and have bearings upon several

questions in social economy.

The Earl of Shaftesbury, in his valuable evidence before the 'Select

Committee on Lunatics' (1859), observes, in answer to query 263, "I think

it would be very desirable if we could have proper statistics upon

insanity drawn up and put upon a good footing. It would require great

trouble and expense; but I think it would be worth the trouble and

expense, if it could be put in the hands of some competent persons; and I

have no doubt that some remarkable results would be brought out." Every

one, who knows how defective are the existing statistics of the disease,

will cheerfully second his Lordship's wish. This, however, does not go so

far as our own; for Lord Shaftesbury appears, as far as we can judge from

his words, solicitous only to take a sort of census of the insane and to

deduce from it certain facts; whereas we desire not only an accurate

census at present, but also a well-arranged scheme for keeping up the

correctness of the statistics of the insane for the future, by making

every instance of insanity returnable to the Lunacy Board. Our desire, in

short, is to bring every lunatic in the kingdom within the cognizance of

the Commissioners in Lunacy, either directly or by some recognized agent

acting in their place, so that protection and proper care may be assured

to every such afflicted individual. A necessary supplementary provision to

placing a name on the register would be required for removing it on

certified recovery; the return of which should be made through the same

channels as the report of the attack.

Should the registration proposed be enforced by law,--as it must be to

render it at all perfect, under a penalty,--it would afford a remedy

against the wide-spread plan of placing lunatics where they are unheard

of, and unknown to all except those concerned in their detention. It would

make the Commissioners acquainted with all those very numerous patients

who often drag on a painful and neglected existence in lodgings, under the

control of persons of all sorts, with many of whom, it is to be

apprehended, the gain to be got by their detention is the ruling motive in

their actions.

Another advantage obtainable by a system of registration, so conducted as

to ensure the reporting of cases immediately, or almost so, on their

occurrence, is, that it would prepare the way for early treatment, more

particularly so perhaps in the case of pauper lunatics. In the instance of

the last-named class of insane, the law might render their removal to an

asylum imperative, on the report of the onset of their disorder, by

refusing their friends the attendance of the parochial medical officer on

the patient at home as well as parochial relief, and by holding them

responsible on the ground of culpable neglect for anything untoward that

may happen to the patient or others. We anticipate that such an arbitrary

interference of the law would be but very seldom required, for the poor

mostly would be only too happy to rid themselves of a troublesome and

useless member of the family.

Moreover, in the case of those raised above poverty and competent to

provide for their insane relatives, it would be no undue stretch of legal

authority to require them to satisfy some duly appointed and experienced

officer, that the provisions contemplated or furnished by them for the

patient were of a satisfactory character and calculated to favour

recovery. The existing law, indeed, goes so far as to interfere with the

friends of a lunatic and to deprive them of his care, if there be evidence

to show that he is cruelly treated or neglected. It moreover imposes upon

the friends all costs incurred on behalf of the patient. The section cited

is _sect._ lxviii. 16 and 17 Vict. cap. 97, and the suggestion we offer is

but an amendment of this, so far as to require the friends of every insane

person not placed in a licensed house or asylum, to show that such lunatic

is properly treated and taken care of.

The registration must be accompanied by visitation. The appointed medical

registrar must be a witness to the fact he is called upon to register; and

a case once registered should be visited at least once in three months,

until recovery or death takes place, when in either case the return of the

patient as a lunatic would be cancelled under a certificate to the fact

supplied by the registrar. These remarks apply specially where patients

are placed out singly. This plan of registration, coupled with that of

visitation, would not only give security that the patient was properly

treated, but would also prevent secret removals to lodgings or other

uncertified receptacles for lunatics, or to a foreign country.

With reference to the last-named proceeding, there ought assuredly to be

some stringent legal provisions, if not to prevent it entirely, at least

to place it under great restrictions. The Lunacy Law in its intent and

administration is both stringent and minute where it deals with asylum

provision for the insane in this country; but it is impotent if the

friends of a lunatic choose to send him out of the country. The act cuts

him off from all protection of the laws he was born under and has never

forfeited. Certainly it must be granted, that in every civilized country

of the world lunacy laws are enacted for the protection of the insane; yet

even where those laws are good, we know of no realm, and we believe there

is none, where the interests of the insane are so well watched over and so

adequately provided for, as in our own. This opinion we assert as the

result of personal observation in most of the countries of Europe, and the

perusal of the reports on the state of the insane in those countries.

Where English lunatics are transferred to foreign public asylums--and

there are many sent to such, particularly to those in France--there is

often very excellent treatment and moderate State supervision; but it must

be borne in mind, that the poor patients are thrust among strangers by

nation, by habits, and by laws; there is no security against their being

placed among the lowest classes of pensioners, who are less tenderly dealt

with than our asylum paupers; and they are besides entirely at the mercy

of their relatives or friends, who may as far as possible ignore their

existence, prey upon their substance at home, and allow only some pittance

for their maintenance in the foreign land.

We are persuaded that the allusion to this defect in the laws of lunacy is

sufficient to extort attention to it, and obtain its redress. The project

of the law of lunacy for Sardinia, which we translated for the pages of

the 'Journal of Psychological Medicine' (vol. x. p. 818), contained the

two following clauses:--"Art. 21. It shall be incumbent on all individuals

who shall place an insane person in a foreign asylum, to present, every

thirty days, to the Minister of the Interior a precise report of the

physical and mental condition of the patient, prepared by the physician of

the asylum. Art. 22. It shall be in the power of the Minister of the

Interior, by previous concert with his colleague for foreign affairs, to

cause any patient confined in a foreign asylum to be brought back to his

own country, provided that this can be done without injury to the patient,

and that he can be readily provided for in his own family, and is in

possession of sufficient pecuniary means for his maintenance."

Some such clauses need be added to any new Act of Parliament for the care

and treatment of lunatics in this kingdom. The Commissioners in Lunacy

would be the right persons to move first in the matter by calling upon

friends for information respecting their lunatic relatives abroad; and the

Foreign Minister, acting upon their recommendation, would, we presume, be

the proper official to arrange with the authorities abroad for the

transfer of the patient to his own country.

It may not be possible so to limit individual liberty as to interdict the

removal of lunatics from their native country; but it is undoubtedly

consonant with English law, and a matter of justice to the poor lunatic,

when so dealt with by his friends as a commodity to barter about, that the

legal protection due to him in his own land should be so far extended to

him in a foreign state, that some public authority should be satisfied

that he is duly cared for, and treated in the asylum he occupies, and has

that allowance set aside for his maintenance, which his pecuniary means

will justify. Likewise, it would be no illegal stretch of power to call

upon the friends of a lunatic, whose condition abroad was unsatisfactory,

to bring him back to his native country; or, in case of their refusing to

do so, to have the order carried out by others, and its costs levied upon

the recusant friends.

After all, however, before any such law could be effectual, the

opportunities of ascertaining the existence of lunatics must be gained by

the adoption of the system of registration; for, otherwise, the

Commissioners could derive no knowledge of the cases sent abroad, even of

such as might have at one time been under their jurisdiction in licensed

asylums.

This remark leads us to notice another default in the lunacy code, viz.

that of not enforcing a return in the case of all patients removed from

asylums uncured, of the place to which they are removed. At present it is

possible for the friends of a lunatic in an asylum or licensed house, to

order his discharge, and to remove him where they please, to some spot

unknown, if they so choose, to any but themselves. The superintendents of

the asylums make a return to the Lunacy Commissioners that such a patient

has been discharged by order of the relative or friend who authorized his

admission, and that he has gone out uncured or relieved, but no

information is required of the place and manner in which the lunatic is to

be disposed of for the future. This circumstance is true of all cases of

lunacy not found so by inquisition; that is, all except those put under

the jurisdiction of the Lord Chancellor, or of his representatives in

lunacy affairs, the Masters in Lunacy. For these so-called 'Chancery

lunatics' the sanction of the Masters is required, both to the removal, to

the locality, and to the persons proposed for the patient's reception.

Similar protection should be extended to all insane persons. The power of

removal cannot be taken out of the hands of a lunatic's immediate

relatives, but it may be hedged about by the restriction, that the removal

of an uncured patient shall be reported to the Commissioners in Lunacy,

who shall, after acquainting themselves with the place, the persons, and

the provisions intended for the welfare of the patient, have the power to

permit or to refuse it.

The registration of all lunatics, particularly on the accession of their

malady, is exposed to certain objections, none of which, however, are, in

our opinion, of sufficient weight to militate against the plan. One great

impediment to its adoption, among most persons above the condition of

paupers, and in some degree among the poor also, is the desire of secrecy

on the part of friends, who endeavour in every way to restrict the

knowledge of their relative's mental disorder to the circle of his own

family, and, if possible, to ignore its being actual insanity. On the one

hand, the insanity is treated as if it brought discredit on all related to

the afflicted person; and on the other, relations dread its recognition by

any public authority, and set themselves in array against any inquiry

which seems to trench on their private affairs. The self-same feelings and

prejudices, as before shown (p. 32), operate against the early and

successful treatment of private patients; and as obstacles to registration

they are equally to be regretted. The attempt to keep secret an attack of

insanity is virtually impracticable; and though it is, in truth, a dire

misfortune to both patient and family, yet is an attack of mental disorder

a less discredit than one of gout, which our forefathers, in their folly,

courted as a pledge of good manners and good breeding. The mischief of

these notions, however, is, that they operate inimically to the interests

of the patient: they stand in the way of early and appropriate treatment,

and thereby tend to prolong the malady, or to render it inveterate. Could

the friends bring themselves boldly to face the whole truth, and admit the

fact that their relative was insane, and were they encouraged by their

medical man to take this true view of the matter, and to act upon it, by

submitting the patient to the necessary treatment, they would very often

escape the evil of exposure they dread, and soon have their relative

restored to them again, instead of having, by various subterfuges, to hide

his condition, and to account for his long disappearance from society and

from home. Besides, the hollowness of the pretences or excuses for absence

must some day be found out, when the impression upon acquaintances will be

the more profound, and the self-respect of the relatives suffer the wound

inflicted by the exposure of the vain deception they have essayed to

practise.

Again, the recording of the occurrence of insanity in a member of a

family, which we hold to be as important to the patient and his friends as

to the State, need not be regarded as an inquisitorial proceeding. It can

be effected with every attention to secrecy;--the registrar would be sworn

to secrecy, and the register in the central office would be a sealed book,

except under certain conditions authorized by the Courts of Law. There is

no public declaration of the fact of the insanity involved by its being

recorded in the books of an office under the security of its

functionaries.

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 intermediate

position for a person suffering from any form of cerebral agitation or of

mental disturbance; he must be declared by certificate a lunatic, or his

insanity must be called 'nervousness.' Under the latter designation of his

malady, he cannot receive treatment in an Asylum or Licensed House; and

yet, all his acts in behalf of his own affairs, that is, where his friends

do not arbitrarily assume the power to act for him, may at any future time

be disputed as those of a lunatic. Yet, as noticed more than once before,

all the probable disadvantages of this anomalous position are risked in

very many cases, and the best chances of recovery thrown away, because the

friends (and the patient too very often) are unwilling to have him

certified as a lunatic. An alteration, therefore, of the law seems much

required in this matter. The Earl of Shaftesbury has met this want

partially by the clause he has proposed in favour of 'nervous' patients,

and his Lordship, in a preceding portion of his evidence (Queries

191-192), expressed himself in favour of mitigating the wording of the

medical certificates required. We have also heard Dr. Forbes Winslow

express sentiments to a similar effect, that the law ought to recognise

the legality of placing certain patients suffering from some varieties of

mental disturbance under treatment in licensed houses, and especially

those who will voluntarily submit themselves to it, without insisting on

their being certified as lunatics.

This is not an improper place in our remarks to direct attention to the

proposition to legalize the establishment of intermediate institutions, of

a character standing midway, so to speak, between the self-control and

liberty of home and the discipline of the licensed asylum or house, to

afford accommodation and treatment for those who would be claimants for

them under the mitigated certificates above considered. Such institutions

would be very valuable to the so-called 'nervous patients,' and to the

wretched victims of 'dipsomania'--the furor for intoxicating drinks; for

there are many advantages attending the treatment of these, as of insane

patients, in well-ordered and specially arranged establishments, over

those which can be afforded in private houses. It may likewise be added,

that the facilities of supervision by the appointed public functionaries

are augmented, and greater security given to the patients when so

associated in suitable establishments. We add this because, although the

certificates are mitigated in their case, and they are not accounted

lunatics, yet we regard that degree of visitation by the Commissioners,

indicated by Lord Shaftesbury, to be in every way desirable.

It is not within the compass of this work to enter into the details for

establishing and organizing these retreats: they have been discussed by

several physicians, and more particularly in Scotland, where, it would

seem, examples of drunken mania are more common than in England.

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