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

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.