On the State of Lunacy and the Legal Provision for the Insane
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.
Chap. IX. – Appointment of District Medical Officers
Throughout the preceding portion of this book we have pointed out numerous instances wherein the legal provision for the insane fails in its object from the want of duly-appointed agents, possessing both special experience and an independence of local and parochial authorities; and we have many times referred to a district medical officer, inspector or examiner, as a public functionary much needed in any systematic scheme to secure the necessary supervision and protection of the insane, particularly of such as are paupers. We will now endeavour to specify somewhat more precisely the position and duties of that proposed officer; but, before doing so, we may state that the appointment of district medical officers is not without a parallel in most of the Continental States. In Italy there are provincial physicians, and in Germany Kreis-Artzte, or District-physicians, who exercise supervision over the insane within their circle, besides acting in all public medico-legal and sanitary questions. In our humble opinion, the institution of a similar class of officers would be an immense improvement in our public medical and social system. The want of public medical officers to watch over the health and the general sanitary conditions of our large towns has been recognised and provided for; although the machinery for supplying it is much less perfect than could be wished: for to entrust the sanitary oversight and regulation of populous districts to medical men engaged in large general practice, often holding Union medical appointments, and rarely independent of parish authorities, is not a plan the best calculated to secure the effectual performance of the duties imposed; for, as a natural result, those duties must rank next after the private practice of the medical officer, and constitute an extraneous employment.
In the establishment of a class of district medical officers, – chiefly for the examination, supervision and registration of all lunatics or alleged lunatics and ‘nervous’ patients not in asylums, but placed, or proposed to be placed, under surveillance, accompanied with deprivation of their ordinary civil and social rights, – we would protest against the commission of such an error in selecting them, as has, in our opinion, occurred in the appointment of sanitary medical officers generally: for the performance of the duties which would devolve on the district medical officer, it would indeed be essential that he should be perfectly independent of local authorities, that he should not hold his appointment subject to them, and that his position among his professional brethren should be such as to disarm all sentiments of rivalry or jealousy among those with whom his official duties would bring him in contact. What should be his position and character will, however, be better estimated after the objects of his appointment are known.
The extent of the district assigned to this official would necessarily vary according to the density of population; so that some counties would constitute a single district, and others be divided into several. In the instance of a county so small as Rutland, the services of a separate district medical officer would hardly be required, and the county might be advantageously connected with an adjoining one.
One principal purpose of his office would be to receive notice of every case of insanity, of idiocy, or of ‘nervousness’ (as provided for by Lord Shaftesbury’s proposal), and to register it; the notice to be sent to him by the medical attendant upon the patient. Upon receiving such notice, he should forthwith, except under certain contingences hereafter indicated, visit the case, and determine whether it should be rightly placed under certificates as one of lunacy, or as one of ‘nervous’ disorder, amenable to treatment without the seclusion of an asylum; and should transmit the result of his examination and the report of the case to the Lunacy Board. It might supply an additional protection to the lunatic, and be satisfactory otherwise, if the signature of this officer were required to the original certificates (see p. 165) before their transmission to the central office in London.
The return made by the district medical officer to the Commissioners in Lunacy would be of much service to them in determining their future course with reference to the visitation of the patient (in carrying out Lord Shaftesbury’s proposal, p. 161), supposing him to be detained at home, or in lodgings with strangers, instead of being transferred to an asylum or licensed house. So again, if the patient were removed to an asylum, he would furnish a report of his history and condition to the physician or proprietor, and thereby render a valuable service, particularly in the case of paupers, of whom next to nothing can frequently be learnt from the relieving officers who superintend their removal to the County Asylum. The want of a medical report of cases on admission is, in fact, much felt and deplored by medical superintendents; and, since it is proposed that the district officer should visit the patient at his own home, or, in exceptional cases, elsewhere, and inquire into his mental and bodily state, and into the history of his disorder, before his removal to the asylum, and as soon as possible after the onset of the attack, he would be well-qualified to render a full account of his case.
We have spoken of a notice of idiots within his district being sent to the district inspector, and of his duty to register them. This matter we regard as certainly calling for attention, for, as remarked in a previous page (p. 149), idiots need be submitted to appropriate educational and medical means at an early age to derive the full benefits of those measures; and among the poor, they certainly should not be left uncared for and unnurtured in the indifferent and needy homes of their friends, until, probably, their condition is almost past amelioration.
Again, with reference to the transmission of pauper lunatics to county asylums, we are disposed to recommend that the order for it be signed by the district medical officer, without recourse to a justice, in those cases where he can visit them, and in comparison of which indeed others ought to be exceptional. Where, for instance, by reason of the remoteness of the patient’s home, or of the workhouse or other building wherein he is temporarily detained, the district medical officer’s visit could not be specially made except at great cost, the removal of the patient to the asylum might be carried out under the order of a magistrate, and the examination made by the district officer, as soon after his reception as possible; or better, at his own residence, which ought to be in a town not far from the county asylum.
We advocate the delegation of the authority to the district officer to make an order in lieu of a justice, on the production of the legal medical certificate required, because we consider him much better qualified to administer that portion of the lunacy law, particularly as that law at present stands, which puts it in the power of a justice to impede the transmission of a lunatic for treatment, if, in his opinion, the patient’s malady do not require asylum care: and it is a fact, that the clause permitting a justice this influence over a patient’s future condition is often exercised; at times, contrary to the decided advice of medical men, and to the detriment of the poor patient. Lord Shaftesbury refers to such an occurrence in his evidence (op. cit., query 846). Having in view private patients especially, his Lordship remarks that nothing could be worse than to take them before a magistrate: “there would be a degree of publicity about it that would be most painful … and to have the matter determined by him whether the patient should or should not be put under medical treatment. In ninety-nine cases out of one hundred, the magistrate knows little or nothing about the matter. A case occurred the other day of a poor man who was taken before a magistrate, and he refused to certify, because the man was not in an infuriated state. ‘A quiet person like him,’ he said, ‘ought not to be put into an asylum; take him back.’ He was in a low, desponding state, and if he had been sent to a curative asylum, he might have been cured and restored to society.”
Mr. Gaskell also adds his evidence to that of the noble chairman of the Board, in reply to query 1385 (op. cit. p. 133) put by Sir George Grey: – “Is the magistrate to be quite satisfied on the evidence that the pauper is a proper person to be taken charge of in the county asylum?” Mr. Gaskell replies, “Yes, as I said, on the medical gentleman giving a certificate. Then it is his duty to make an order, and if he is not satisfied by his own examination, or the medical evidence is not sufficient to justify the order, he declines. I am sorry to say that they frequently do.”
It is also to be remembered that the existing law allows the justice’s order to be dispensed with, if it cannot be readily obtained, or if the patient cannot be conveniently taken before him, and admits as a substitute an order signed by an officiating clergyman and an overseer or a relieving officer, upon the production of a medical certificate. Moreover, by the interpretation clause, the chaplain of a workhouse is to be deemed an officiating clergyman within the meaning of the Act. Now, these conditions seem to us to frustrate the undoubted intent of the law in requiring a magistrate’s order, viz. to guard against the unnecessary detention of an alleged lunatic; for they place the liberty of the pauper entirely in the hands of parish officers and paid servants, who will naturally act in concert; and it is conceivable that workhouse authorities might be anxious to get rid of a refractory pauper, and could together with the relieving officer influence in a certain degree the opinions and sentiments of the salaried chaplain and medical officer, in order to sanction his removal to the county asylum.