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.