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

“For the above reasons, I am unable to express the opinion that any insane patients who are not helpless from bodily infirmity or total loss of mind are unconditionally harmless to themselves and others. I have, however, made out a list of sixty patients who are incurable, and who are likely, under proper care, to be harmless to themselves and others.

“Of the patients in this list who are lunatic, only nine have sufficient bodily strength to be engaged in industrial pursuits. The remaining twenty-three are so far incapacitated by the infirmities of old age, or by bodily disease, or by loss of mental power, that they are unable to be employed, and require careful nursing and frequent medical attendance. The patients who have sufficient bodily strength to be employed, are also with the least degree of certainty to be pronounced harmless to themselves and others. As the result of long training, they willingly and quietly discharge certain routine employments under proper watch; but it is probable, that if removed from their present position, any attempts made to employ them by persons unaccustomed to the peculiarities of the insane, will be the occasion of mental excitement and danger.

“The twenty-eight idiots have, with few exceptions, been sent to the asylum from union houses, where it has been found undesirable to detain them, on account either of their violent conduct, or of their dirty habits, or some other peculiarity connected with their state of mental deficiency; habits of noise or indecency for instance.”

Probably the following extract from the Report of the Committee of the Surrey Asylum (1856) may have more weight with some minds than any of the arguments and illustrations previously adduced, to prove that the detention of presumed “harmless patients” in workhouses will not answer. The declaration against the plan on the part of the Surrey magistrates is the more important, because they put it into practice with the persuasion that it would work well. But to let them speak for themselves, they write, – “The committee adverted at considerable length in their last Annual Report to the circumstance of the asylum being frequently unequal to the requirements of the County, and of their intention to attempt to remedy the defect by discharging all those patients, who, being harmless and inoffensive, it was considered might be properly taken care of in their respective union houses.

“The plan has been tried, and has not been successful. Patients who, under the liberal and gentle treatment they experience in the asylum, are quiet and tractable, are not necessarily so under the stricter regulations of a workhouse; indeed, so far as the experiment has been tried, the reverse has been found to be the case; most of the patients so discharged having been shortly afterwards returned to the asylum, or placed in some other institution for the insane, in consequence of their having become, with the inmates of the workhouse, ‘a mutual annoyance to each other.’ Any arrangement, short of an entire separation from the other inmates of the workhouse, will be found to be inefficient.” This is the same as saying that if lunatics are to reside in workhouses, a special asylum must be instituted in the establishment for their care, and the comfort and safety of the other inmates.

If the well-being of the insane were the only question to be settled, no difficulty would attend the solution, for experience has most clearly evidenced the vast advantages of asylums over workhouses as receptacles for insane patients, whatever the form or degree of their malady. Dr. Bucknill has some very forcible remarks in his paper on “The Custody of the Insane Poor” (Asylum Journal, vol. iv. p. 460), with illustrative cases; and in his Report last quoted, reverts to this subject of the relative advantages of asylums and workhouses; but we forbear to quote, if only from fear of being thought to enlarge unduly upon a question which has been decided long ago by the observation and experience of all those concerned in the management of the pauper insane; viz. that whatever the type and degree of mental disorder and of fatuity, its sufferers become improved in properly managed asylums, as intellectual, moral, and social beings upon removal from workhouses; and by a reverse transfer, are deteriorated in mind, and rendered more troublesome and more costly. To the workhouse the lunatic ward is an excrescence, and its inmates an annoyance: in its organization, there is an absence or deficiency of almost all those means conducive to remedy or remove the mental infirmity, and the very want of which contributes as much as positive neglect and maltreatment to render the patient’s condition worse, by lowering his mental and moral character. But such deterioration or degradation is not an isolated evil, or the mere negation of a better state; for it acts as a positive energy in developing moral evil, and brings in its train perverseness, destructiveness, loss of natural decency in habits, conversation and conduct, and many other ills which render their subjects painfully humiliating as human beings, and a source of trouble, annoyance, and expense to all those concerned with them.

In a previous page we have sought to determine what was the proportion of lunatic inmates found by the Lunacy Commissioners in workhouses considered to be not improperly detained in them, and have estimated it at one-half of the whole number. The foregoing examination, however, of the adaptation of workhouses for the several classes of lunatics distinguishable, leads to the conviction that a very much less proportion than one-half ought to be found in those establishments. For our own part, we would wish to see the proportion reduced by the exclusion of most of its component members, reckoned as “harmless” patients; a reduction which would well nigh make the proportion vanish altogether. What is to be done with the lunatics removed from workhouses, is a question to be presently investigated.

But before proceeding further, some consideration of the legal bearings of workhouse detention of lunatics is wanting, for it has been advanced by some writers that such detention is illegal.

Now, in the first place, it must be admitted that a workhouse is not by law, nor in its intent and purpose, a place of imprisonment or detention. Its inmates are free to discharge themselves, and to leave it at will when they no longer stand in need of its shelter and maintenance. Whilst in it, they are subject to the general rules of workhouse-government, and to a superior authority, empowered, if not by statute, yet by orders of the Poor-Law Board, or by Bye-Laws of the Guardians, to exercise discipline by the enforcement of penalties involving a certain measure of punishment. Temporary seclusion in a room may be countenanced, although not positively permitted by law; but prolonged confinement, the deprivation of liberty, and a persistent denial of free egress from the house, are proceedings opposed to the true principles of English law.

Yet it may be that a plea for their detention might be sustained in the case of sick or invalid patients (with whom the insane would be numbered) under certificate of the parochial medical officer, provided no friend came forward to guarantee their proper care, or that they could not show satisfactorily the means of obtaining it; for, of such cases, the workhouse authorities may be considered the rightful and responsible guardians, required in the absence of friends to undertake their charge and maintenance. Upon such grounds, probably, cause might be shown for the detention of the greater part of workhouse lunatic inmates, although there is no Act of Parliament explicitly to sanction it. Should such a plea be admitted, the notion, entertained by Dr. Bucknill, that an action would lie for false imprisonment against the Master and Guardians of the workhouse, would be found erroneous.

The Lunacy Commissioners presented some remarks on this question, indicating a similar view to that just advanced in their ‘Further Report,’ 1847. For instance (p. 287, op. cit.), they observed: —

“How far a system of this kind, which virtually places in the hands of the masters, many of whom are ignorant, and some of whom maybe capricious and tyrannical, an almost absolute control over the personal liberty of so many of their fellow men, is either warranted by law, or can be wholesome in itself, are questions which seem open to considerable doubt. Probably if the legality of the detention came to be contested before a judicial tribunal in any individual case, the same considerations of necessity or expediency which originally led to the practice, might be held to justify the particular act, provided it were shown that the party complaining of illegal detention could not be safely trusted at large, and that his detention, therefore, though compulsory, instead of being a grievance, was really for his benefit as well as that of the community.”

Again, in the second place, the law, without direct legislation to that effect, yet admits, – by the provisions it makes for pauper lunatics not in asylums or licensed houses, and by the distinction it establishes between persons proper to be sent to an asylum, and lunatics generally so-called, – that insane patients may be detained elsewhere than in asylums. For instance, by sect. lxvi. 16 & 17 Vict. cap. 97, 1853, provision is made for a quarterly visit by the Union or Parish Medical Officer to any Pauper Lunatic not being in a Workhouse, Asylum, Registered Hospital, or Licensed House, in order that he may ascertain how the lunatic is treated, and whether he “may or may not properly remain out of an asylum.” So likewise by sect. lxiv. of the same Act, the clerk or overseers are required to “make out and sign a true and faithful list of all lunatics chargeable to the Union or Parish in the form in schedule (D).” This form is tabular, and presents five columns, under the heading of “where maintained,” of which three are intended for the registry of the numbers not confined in Asylums, Hospitals, and Licensed Houses, but who are (1) in workhouses, (2) in lodgings, or boarding out, or (3) residing with relatives.

Further, the law distinguishes, by implication, a class of lunatics as specially standing in need of Asylum care, and as distinct from others. By the Poor-Law Amendment Act (4 & 5 Will. IV. cap. 76. sect. 45), it is ordered that nothing in that Act “shall authorize the detention in any workhouse of any dangerous lunatic, insane person, or idiot for any longer period than fourteen days; and every person wilfully detaining in any workhouse any such lunatic, insane person, or idiot for more than fourteen days, shall be deemed guilty of a misdemeanour.” This section is still in force, is constantly acted upon by the Poor-Law Board, and is legally so read as if the word ‘dangerous’ were repeated before the three divisions of mentally-disordered persons referred to, viz. lunatics, insane persons, and idiots. So, likewise, by sect. lxvii. (16 & 17 Vict. cap. 97) – the “Lunatic Asylums’ Act, 1853,” now in operation, – the transmission of an insane individual to an asylum is contingent on the declaration that he is “a lunatic and a proper person to be sent to an asylum.”

Moreover, by sect. lxxix. of the same Act, it is competent to any three Visitors of an asylum, or to any two in conjunction with the Medical Officer of the asylum, to discharge on trial for a specified time “any person detained in such asylum, whether such person be recovered or not;” and by the following section (lxxx.) it is ordered, that, upon receipt of the notice of such discharge, “the Overseers or Relieving Officers respectively shall cause such lunatic to be forthwith removed to their parish, or to the workhouse of the Union.” By the 79th section it is further provided, that “in case any person so allowed to be absent on trial for any period do not return at the expiration of such period, and a medical certificate as to his state of mind, certifying that his detention in an Asylum is no longer necessary, be not sent to the Visitors, he may, at any time, within fourteen days after the expiration of such period, be retaken, as herein provided in the case of an escape.”

On the other hand, simple removal from an asylum is by the 77th section, curiously enough interdicted except to another asylum, a Registered Hospital, or a Licensed House. This intent, too, of the section is not changed by the amendment, sect. viii. 18 & 19 Vict. cap. 105. Lastly, no other place than an Asylum, Registered Hospital, or Licensed House, is constituted lawful by sect. lxxii. for the reception of any person found lunatic and under “order by a Justice or Justices, or by a Clergyman and Overseer or Relieving Officer, to be dealt with as such.” But this section has to be read in connexion with preceding ones, for instance, with sect. lvii., by which it is laid down that the Justices or other legal authority must satisfy themselves not only that the individual is a lunatic, but also that he is “a proper person to be sent to an asylum.”

These quotations indicate the state of the law respecting the detention of lunatics elsewhere than in asylums. This state cannot be held to be satisfactory: it evidently allows the detention of lunatics in workhouses, while at the same time it affords them little protection against false imprisonment, and makes no arrangement for their due supervision and care, except by means of the visits of the Lunacy Commissioners, which are only made from time to time, not oftener than once a year, and rarely so often. The alleged lunatics are for the most part placed and kept in confinement without any legal document to sanction the proceeding; without a certificate of their mental alienation, and without an order from a magistrate. Within the workhouse, they are, unless infirm or sick, treated like ordinary paupers, save in the deprivation of their liberty of exit; they may be mechanically restrained, or placed in close seclusion by the order of the master, who is likely enough to appreciate the sterner means of discipline and repression, but not the moral treatment as pursued in asylums; and, lastly, they live deprived of all those medical and general measures of amelioration and recovery as here before sketched.

An extract from the ‘Further Report’ of the Commissioners in Lunacy will form a fitting appendix to the observations just made. It occurs at p. 287 (op. cit.), and stands thus: —

“It certainly appears to be a great anomaly, that while the law, in its anxiety to guard the liberty of the subject, insists that no persons who are insane – not even dangerous pauper lunatics – shall be placed or kept in confinement in a lunatic asylum without orders and medical certificates in a certain form, it should at the same time be permitted to the master of a workhouse forcibly to detain in the house, and thus to deprive of personal liberty, any inmate whom, upon his own sole judgment and responsibility, he may pronounce to be a person of unsound mind, and therefore unfit to be at large.”

It is unsatisfactory that the law recognizes the distinction between dangerous and other lunatics, designated as “harmless;” for we have pointed out that no such rigid separation can be made; that it is with very few exceptions impracticable to say with certainty what patients are harmless and what not, inasmuch as their state is chiefly determined by surrounding conditions, by the presence or absence of moral control and treatment. It is likewise to be regretted that so much is left to the discretion of relieving officers and overseers, in the determination of the lunatics “proper to be sent to an asylum;” for those parish functionaries nearly always display a proclivity, where relief is to be afforded, to any plan which at first sight promises to be the most cheap; and hence it is, as remarked in previous pages, they think to serve the rate-payers best by keeping, if practicable, the insane in workhouses. The expediency of asylum treatment for those who claim it, is surely not a question to be determined by such officers. Yet the wording of the Act (sect. lxvii.), that, if they have notice from the parish medical officer of any pauper who “is, or is deemed to be a lunatic, and a proper person to be sent to an asylum,” or if they in any other manner gain knowledge of a pauper “who is, or is deemed to be a lunatic, and a proper person to be sent to an asylum, they shall within three days” give notice thereof to a magistrate, – seems to put the solution of the question pretty much in their hands. Although when they receive a notice of a pauper lunatic from the union medical officer, they would appear by sect. lxx. to be bound to apprise a Justice of the matter, yet, in the absence of such a notice, an equal power in determining on the case is lodged in their hands as in those of the medical officer, by the phrase “is, or is deemed to be a lunatic, and a proper person to be sent to an asylum;” for this clause respecting the fitness of the case, reads with the parts of the sentence as though it stood thus in full – ‘is a lunatic and a proper person to be sent to an asylum, or is deemed a lunatic and a proper person to be sent to an asylum;’ and there is nothing in sect. lxx. to enforce, under these circumstances, a notice being sent to a Justice. It is, indeed, evidently left to the discretion of the overseer or relieving officer to report a case of lunacy falling within his own knowledge to a Justice, for he is empowered to assume the function of deciding whether it is or is not a proper one for an asylum. Moreover, we cannot refrain from thinking that a parochial medical officer is not always sufficiently independent, as a paid employé, to certify to the propriety of asylum care so often as he might do, where the guardians or other directors of parish affairs are imbued with rigid notions of economy, and hold the asylum cost for paupers in righteous abhorrence. In fine, were this enactment for reporting pauper lunatics to County and Borough Justices, in order to obtain a legal sanction for their detention, sufficiently clear and rigidly enforced, there would not be so many lunatics in workhouses, and none of those very unfit ones animadverted upon by the Commissioners in Lunacy (see p. 25, and 11th Rep. C. L. 1857).

The first clause of sect. lxvii. is ambiguous; for though it is evidently intended primarily to make the Union medical officer the vehicle of communicating the knowledge of the existence of pauper lunatics in his parish, yet it is neither made his business to inquire after such persons, nor when he knows of their existence, to visit and ascertain their condition. It is left open for him to act upon a report that such a pauper “is deemed to be a lunatic, and a proper person to be sent to an asylum,” without seeing the individual; but generally he will officially hear first of such patients through the channel of the relieving officer, by receiving an order to visit them. Indeed, the relieving officer is legally the first person to be informed of a pauper requiring medical or other relief; and, as we have seen, it is competent for him to decide on the question of asylum transmission or not for any case coming directly to his knowledge. Hence, in the exercise of his wisdom, he may order the lunatic forthwith into the Union-house, and call upon the medical officer there to visit him. The consignment of the lunatic to the workhouse being now an accomplished fact, it becomes a hazardous enterprise, and a gratuitous task on the part of the medical officer (for no remuneration is offered for his report), to give the relieving officer or overseer a written notice that the poor patient should rightly be sent to the asylum, when he knows that those parish authorities have made up their minds that it is not a proper case to be sent there. In fact, the law makes no demand of a notice from the medical officer of the Union necessary where the knowledge of a lunatic pauper first reaches the relieving officer or overseer, or where the patient is already in the workhouse; and no report will be sought from him under such circumstances, unless the parochial authorities decide that they will not take charge of the case in the workhouse.

The object of the 67th and five following sections is evidently to promote the discovery of pauper lunatics, and to ensure the early transmission of all those amenable to treatment to County Asylums; but these advantages are not attained, the legal machinery being defective. To fulfil the intention, it should be made imperative on the part of the relatives or friends to make known the occurrence of a case of lunacy at its first appearance to a duly-appointed medical man, who should visit and register it, and, with the concurrence of a magistrate, order detention in a properly-constituted asylum. Such a medical officer would have a district assigned to him; of his duties at large we shall have occasion hereafter to speak; to allude further to them in this place will cause us to diverge too widely from the subject under consideration.

The 67th section of the “Lunatic Asylums’ Act,” which has above been submitted to criticism, we find referred to in the Lunacy Commissioners’ Eleventh Report, wherein it is spoken of as disregarded by parochial authorities; its ambiguity and the loophole to a contravention of its meaning being, however, unnoticed. The reference occurs in the following passage (op. cit. p. 16), which censures a practice we have already animadverted upon: —

“And here we take occasion to remark, that if the law were more strictly carried out in one particular, the same temptation to a mistaken and ill-judged economy would not so frequently present itself to Boards of Guardians; nor could it so often occur to them as an advantage, that they should themselves manage their insane poor by the resources at their own disposal. A custom prevails, very generally, of sending all pauper lunatics to the workhouses in the first instance, instead of at once procuring an order for their transmission to an asylum; and nothing has more contributed to the many recent and acute cases improperly so detained. The practice, it is hardly necessary to say, is in direct contravention of the law applicable to insane paupers. Assuming that they come ordinarily at first under the care of the District Parish Surgeon, he is bound to give notice (under the 67th section of the Lunatic Asylums’ Act) to the Relieving Officer, by whom communication is to be made to the Magistrate, upon whose order they are to be conveyed to an Asylum; but in effect these provisions are disregarded altogether. And thus it follows, that the patient, if found to be manageable in the workhouse, is permanently detained there; or even should he ultimately find his way to an asylum, it is not until so much valuable time has been lost that his chances of cure are infinitely lessened. For, although it is our invariable habit, on the occasion of visiting workhouses, to recommend the removal to asylums of all whom we consider as curable, or exposed to treatment unsuited to their state, we find nothing so difficult as the enforcement of such recommendations; and for the most part the Report of the Medical Officer of the Union, to the effect that the patient is ‘harmless,’ is suffered to outweigh any opinion we can offer.”

In this quotation, therefore, we have an official proof that the defective and ambiguous legislation above commented upon is practically not without its mischievous fruits to the well-being of the insane poor. To amend it, some such scheme as we have sketched is called for to secure the reporting of lunatics, their examination and registration, and the legal sanction to their detention for the purposes of their own safety and that of others, and of their treatment; and were it not that at the present moment asylum accommodation cannot be afforded to all the pauper lunatics of the kingdom, their confinement in workhouses ought to be at once rendered illegal. Convinced as we are, that asylums for the insane could be erected, fitted, organized, and maintained at a cost which would leave no pecuniary advantage economically on the side of workhouses; and that, even were the primary expenditure of the latter considerably less, they would in the long run be more expensive on account of their unfitness for lunatic patients, whatever the type of their malady, the injuries they entail on the well-being of all, and the chronic insanity they produce and foster, – it is with much reluctance we are forced to endorse the statement made by the Commissioners in Lunacy, in their 11th Report (p. 17), that workhouse “Lunatic Wards will have to be continued for some time longer,” until, we may add, a more comprehensive, and withal a modified scheme be brought into operation, to cherish, to succour, and to cure those suffering under the double evil of poverty and insanity. Though a remedy to meet the whole case must unfortunately be delayed, yet the Lunacy Commissioners nevertheless need continue energetically to discourage the plan of building special lunatic wards to workhouses, as one, according to their own showing, indeed, fraught with very many evils to their inmates. Such erections ought, in fact, to be rendered illegal; the money spent on them would secure proper accommodation in connexion with a duly organized and managed asylum, as demonstrated in previous pages (p. 48), for all those classes of pauper lunatics, which, under any sort of plea or pretence, can be detained in workhouses. Lastly, we must look to the Commissioners to maintain an active supervision over workhouse inmates, – to hold, at least, an annual “jail delivery” of every union-house, to order the immediate transfer of evidently improper inmates, and to remove others, so to speak, for trial.

The “leading principles,” as laid down by the Commissioners in 1847 (Report, p. 269), and to which, in subsequent Reports, they state their continued adhesion, are as good as the present state of lunacy and lunatic asylums permit to be enforced; but they can be enforced only by the Commissioners themselves, or others possessing equal authority; for workhouse officials will interpret them through the medium of their own coloured vision; and if magistrates were entrusted with the task, we have no confidence that it would be efficiently performed by them as inexperienced, non-medical men, with whom economical considerations will hold the first place. The principles referred to are expressed in the following paragraph: —

“We have invariably maintained that the permanent detention in a workhouse of any person of unsound mind, whether apparently dangerous or not, whose case is of recent origin, or otherwise presents any hope of cure through the timely application of judicious treatment, or who is noisy, violent, and unmanageable, or filthy and disgusting in his habits, and must therefore be a nuisance to the other inmates, is an act of cruelty and injustice, as well as of great impolicy; and we have on all occasions endeavoured, so far as our authority extends, to procure the speedy removal of persons of that description to a lunatic asylum.”

The following practical suggestions, calculated to improve the condition of the insane poor, are deducible from the foregoing remarks on workhouses considered as receptacles for lunatics.

1. The County Asylums should afford aid to all insane persons unable to procure proper care and treatment in private asylums; and 2, such patients should be directly transmitted to them; the circumstance of their entire or partial liability to the poor-rates being, if necessary, subsequently investigated. 3. As a corollary to the last suggestion, the primary removal of patients to a workhouse should, save in very exceptional cases, such as of distance from the asylum and unmanageable violence at home, be rendered illegal; or, what is nearly tantamount to it, for the future no alleged lunatic should be suffered to become an inmate of a workhouse, except with the written authority of the District Medical Officer or Inspector proposed to be appointed. 4. Without the sanction of this officer, likewise, no lunatic should be permitted to be discharged or removed from a workhouse. This is necessary for the patient’s protection, for securing him against confinement in any house or lodging under disadvantages to his moral and physical well-being, to check improper discharges, and to protect the asylum against the transfer to it of unfit cases, a circumstance which will presently be shown to be of frequent occurrence. 5. No person should be detained as a lunatic or idiot, or as a person of unsound mind in a workhouse, except under a similar order as that required in the case of asylum detention, and a medical certificate to the fact of his insanity. 6. If workhouses need be used, whether as temporary or as permanent receptacles for the insane, they should be directly sanctioned by law, placed under proper regulations, and under effective supervision, not only of the Lunacy Commissioners, but also of a Committee of Visitors, and of the District Medical Officer, whose duty it would be to watch over the welfare of the insane inmates, their treatment, diet, occupation, and amusement. The Visitors should be other than guardians or overseers of the poor of the union or parish in which the workhouse is situated, although every union should be represented on the Committee; and they might be selected from the magistrates, and from the respectable classes among the rate-payers. If the county were large, it might be advantageously divided into districts, a Committee of Visitors of Workhouses being appointed in each district. 7. Every workhouse containing lunatics should be licensed as a place of detention for them by the Committee of Visitors, who should have authority to revoke the license. This power of revoking the license should be also vested in the Commissioners in Lunacy. 8. Every such workhouse, and the number of its insane inmates, should be reported to the Lunacy Commissioners. According to our scheme, the District Medical Officer would do this, as well as report generally to the Lunacy Board, the condition and circumstances both of the workhouse and of its insane inmates. 9. For the future, the erection or the appropriation of distinct lunatic wards to workhouses should be interdicted by law.