On the State of Lunacy and the Legal Provision for the Insane

“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.