On the State of Lunacy and the Legal Provision for the Insane
TekstChap. 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): —