Remarks on the Lunacy Ac1s (Scotland), insofar as They, Refer to the Admission of Patients Into, and their Discharge From, Lunatic Asylums
59 Art. V.? :Author: James Bobie, M.D., &c. Eesident Ehj’sician, Boj’al Lunatic Asylum, Dundee. Lead before Meeting of Scottish Section, Psychological Association, Edinburgh* Tuesday, Dec. 14, 1875.
The following remarks on the Scotch Lunacy Acts, so far as ley refer to the admission of patients into, and their discharge iom, Asylums, are not intended to impart any new information on the subject, but are made chiefly with the purpose of laying before this Association certain difficulties which have occurred to me in the administration of the Acts, and are submitted with the special view of eliciting the opinions of the other members on the points which appear to me particularly doubtful. From nature of the subject, they will naturally have reference to wo things; 1. The definition of insanity as laid down by the cotch Law; and 2. The amount of insanity which justifies the e ^tion of patients in Lunatic Asylums.
J-. sis regards the Definition of Insanity.?So far as I have tl^en?a ? to ascertain, according to the terms of Scotch Law, b %iln’Sane are divisible into four classes: a. The furious; ? he fatuous ; c. Idiots; and d. The facile, or persons whose i.i s are so imbecile, or so liable to be unduly influenced by AHiG1S’ aS .^? considered unfit to manage their own affairs. ough it would appear that these differences have been fully of~> it can scarcely, however, be said that the definitions his ulepUllave ^een as clearly set down. Thus even Erskine, in f. Sf r_inciples of the Law of Scotland,” gives a very unsatis- ac interpretation of these terms.
tl Referring to the curatory of idiots and furious persons, he us writes: “Curators are given, not only to minors, but, in general, to everyone who, either through defect of judgment, 1 unfitness of disposition, is incapable of rightly managing his j^.n affairs. Of the first sort are idiots and furious persons, rpi s’;or fatui, are entirely deprived of the faculty of reason.
e distemper of the furious person does not consist in the e ect. of reason, but in an overheated imagination, which . Cruets the application of reason to the purposes of life and jn speaking of causes which grant exemption from punishment, e says: “Far less can we reckon in the number of crimes, in- p iQ^’e Principles of the Law of Scotland, b}7 John Erskine of Carnock, Esq., voluntary actions the first cause of wliicli is not in the agent, as those committed by an idiot or furious person ; but lesser degrees of fatuity, which only darken reason, will not afford a total defence, though they raay save from the poena ordinaria Another circumstance which adds considerably to the diffi- culty of arriving at the real meaning of the term ” insanity,” as used in the Scotch Law, is the fact, that in many of the Acts of Parliament referring to Lunacy in Scotland, especially those recently passed, many terms have been introduced borrowed from the English Law, which, with the exception of the class idiots, are quite different from those found in the Common Law of Scotland, and which naturally have no clear definition as interpreted by that law. The insane, according to the English Law, consist of idiots, lunatics, and persons of unsound mind. Phillips, in his ” Law of Lunatics and Persons of Unsound Mind,” thus refers to the English terms :
” It will appear, from the authorities cited below, that the proper sense to be attached to each of the above phrases has been fully considered and positively determined. We may therefore lay it down, that every person whose mind from his birth, by a perpetual infirmity, is so deficient as to be incapable of directing him in any matter which requires thought or judgment is, in legal phraseology, an idiot.
” Every person qui gaudet lucidis intervallis, and who sometimes is of good and sound memory, and sometimes non compos mentis, is in legal phraseology a lunatic. ” Every person who, by reason of a morbid condition of intellect, is as incapable of managing himself and his affairs as an idiot or a lunatic, not being an idiot or a lunatic, or a person ?of merely weak mind, is in legal phraseology a person of unsound mind.”
He also adds : ” It must be remembered, however, that in legal phraseology a person whose moral feelings are perverted is not by reason of such perversion a person of unsound mind. Further, that if the mind is unsound on one subject, it is not sound on any subject, the mind being indivisible.1’! These terms, whatever objections may be taken to their scientific value, possess, at any rate, sufficient practical value to render them very useful guides in determining what is really the meaning of insanity, as understood by the English Law.
That the same cannot be said of the Scotch Law we have already briefly referred to, and will now further consider ; for * The Principles of the Law of Scotland, by John Erskine of Carnock. p. 515. f The Law concerning Lunatics, Idiots, and Persons of Unsound Mind, by Charles Palmer Phillips, p. 2. REMARKS ON THE LUNACY ACTS (SCOTLAND). G1 not only is it difficult to arrive at what is to be considered insanity, according to the Common Law of Scotland, but even since the passing of the Act 20 & 21 Vict. c. 71 (1857), considerable alterations in the definition of insanity would appear to have been introduced in subsequent Acts. An admirable abstract of the Laws of Scotland referring to lunatics previous to the year 1857 will be found in the Report ?f the Royal Commission appointed to inquire into the state of Lunatic Asylums in Scotland, and the existing law in reference to lunatics, &c. ; and from it we learn that from the earliest period | he ward and custody of the property of lunatics appears to have belonged to the Prince, as pater patriae, and to have been exercised through the intervention of tutors appointed by him.
By the statute of Robert I., in the beginning of the 14tli century, the custody and keeping of persons of “furious mind” were devolved upon their relatives, and failing them, on the jus- ticiar or the sheriff of the county ; while any damage done by such persons, in consequence of negligent keeping, was visited npon their keepers. According to Sir Thomas Craig, a distinction was at one time recognised in this respect between ” fatuous ” and ” furious ” persons : the custody of the former having been committed to the next agnate (nearest male relative by the j er’s side), while that of the latter belonged to the Crown, as having the sole power of coercing with fetters ” (p. 4). * rom the same source we also learn that the difference je ween the terms furiosity and idiocy was very early es- ^ shed. In referring to the appointments of Tutors at Law, ls ^ated that, originally, the practice was to issue one brieve, jlpplicable both to furiosity and fatuity. The essential difference ween these states of mind, however, soon suggested the ex- C separate brieves, according to the supposed mental nclition of the person whose case was to be inquired into? e one called a ” brieve of furiosity,” and the other a ” brieve ?f idiocy.
We have thus three of the forms established?namely, the uiious, fatuous, and idiots. The fourth class of the insane, as eired in Scotch statutes, is first, it would appear, distinctly jttcntioned in the Poor Law Amendment Act (8 & 9 Vict. c.. )i where, in providing for the proper care of the insane, it is enacted, ” that whenever any poor person, who shall become e largeable on any parish or combination, shall be insane or atuous, the parochial board of such parish or combination _iall, within fourteen days of his being known to be insane or u?us, provide that such person shall be lodged in an asylum 0r establishment legally authorised to receive lunatics ;” and in a subsequent clause ” adverts to persons who, from weakness or facility of mind, are unfit to take charge of their own affairs, as among- the persons for whose accommodation poorhouses were to be erected,” thus demonstrating that, while, in the sense of the Legislature, weakminded persons are proper inmates of poorhouses, they are a different class from fatuous persons, who are classed with the insane as proper subjects for confinement in asylums or licensed madhouses” (p. 24). It would appear, however, that by the Act of 1857, this class became incorporated with the other forms of insanity?at least no provision seems to have been made for their care and maintenance out of asylums. From these extracts it will be seen that, previous to 1857, a marked difference existed between the English and Scotch Law, three forms being recognised by the former?viz., idiots, lunatics, and persons of unsound mind? while four were recognised by the latter, viz., the furious, fatuous, idiots, and the facile; the three first of which were ?considered suitable and proper persons for treatment in asylums, and the last in poorhouses. One would naturally suppose that when the Act of 1857 (20 & 21 Vict. c. 71) was prepared, the terms established by the Scotch Law would have been care- fully preserved, but we find such was not the case. The furious and fatuous classes, it is true, are comprehended in the Act; but other terms were also added, which may be regarded as the commencement of the confusion. Thus, in the interpretation clause of this Act, a lunatic is defined as meaning and including not only ” any mad, or furious, or fatuous person,” but also ” persons so diseased or affected in mind as to render them unfit, in the opinion of competent medical persons, to be at large, either as regards their own personal safety and conduct, or the safety of the persons and property of others, or of the public ; ” while in the 35th clause of the same Act we find the lunatic spoken of as ” an insane person, an idiot, or a person of unsound mind.”
The next alteration we find in the definition of the term ” lunatic ” is an important one, and it is to be regretted that little can be said in its favour, beyond its extreme simplicity and extreme comprehensiveness; as there is little doubt the change has contributed not inconsiderably to the alleged increase of insanity, and to other mischievous results in practice. The new definition was established in 1862, when in the interpretation clause of the Amendment Act of that year (25 & 26 Vict, c. 54), it was enacted that ” Lunatic, when used in this and the recited Act, shall mean and include every person certified by two medical persons to be a lunatic, an insane person, an idiot, or a person of unsound mind.” It is difficult to imagine how such a clause could ever have been allowed to pass into law, for practically it amounts to this?that every person is insane and a lunatic who is certified to be so by two medical persons ; and, conversely, that every lunatic can be made legally sane by two medical certificates to that effect.’
The chief cause which appears to have led to this alteration m the definition of the term was the agitation at the time raised by the general medical profession, naturally dissatisfied with the ambiguity which existed in regard to the real legal definition, and as naturally anxious to secure themselves as much as possible from responsibility in granting certificates in cases of insanity ; but the result?as was first pointed out, I believe, by the late Dr Skae ?was in a great measure Simply to transfer this responsibility from the shoulders of the general profession to those of the asylum physicians. Accord- lng to the definition clause of the Act of 1857, it was evidently the duty of those certifying persons to be insane to satisfy themselves that the patient was a lunatic in terms of the Common Law of Scotland ; and although this in many cases 111 ay have proved no easy matter, in consequence of the obscurity which surrounds the subject, still, great assistance was afforded to those granting certificates under this Act, in so far as the certificates were in a measure subject to revision by the sheriff his substitutes, whose duty it was to see that the facts men- loned in the certificate amounted to evidence of insanity in ,le legal sense, before granting their warrant for the transmis- sion of the patient to an asylum. The definition adopted in le Act of 1862, however, may simply be said to have conferred on the general medical profession a power of manufacturing _Urjatics’ tor all that is now required under this Act is that the ndividual be duly certified by two medical persons to be a unatic, an insane person, an idiot, or a person of unsound mind? ? > whatever may be his real state of mind, a statutory lunatic e forthwith becomes. It does not even appear to be obligatory ?n the sheriff or his substitutes to examine the evidence of insanity given in the certificates; it would seem to be sufficient . lat ^hey satisfy themselves that the certificates are drawn up m due form.
. -t>ut it must be borne in mind, that while the sheriff’s warrant gives full power for the transmission of such a statutory lunatic e an asylum, and for his reception therein, it confers no power c detention whatever in regard to time, so that the first ques- ion which the asylum superintendent has to consider is whether . e *s justified in detaining the patient at all. His first business, m fact, is to satisfy himself on a subject which ought to have been c early established before the patient was brought to the asylum.
The only other change or alteration in the definition of insanity is where, in the third clause of the Act 25 & 26 Vict. c. 54, provision is made for the licensing of lunatic wards in poorliouses, for ” pauper lunatics who are not dangerous and do not require curative treatment;” appearing to imply a belief on the part of the Legislature that the insane can readily be so divided into harmless and dangerous, and to those who require curative treatment and those who do not. To this, however, we will refer afterwards.
II. These remarks naturally lead to the consideration of another important question?namely, what is the amount of insanity required by the statute and common law to justify a person’s detention in an asylum ??for it is clear that from the very earliest period it was never intended, or considered necessary, that everybody who might be insane, in the ordinary or everyday sense of the term, should be sent to Lunatic Asylums. We have already seen that, at one time at least, provision was expressly made that those of the poor whose insanity amounted to facility of mind, even when sufficiently extensive as to render them unfit to take charge of their own affairs, might be sent to poor- houses, apparently as ordinary paupers. Now, it is somewhat remarkable that in the Act of 1857 no definite information on this subject is given, although to a certain extent the legal view might be inferred from the 92nd Clause, which refers to the liberation of lunatics by relations or others in the following terms :?” It shall be lawful for any person, having procured and produced the certificate of two medical persons, approved of by the sheriff, of the recovery of any lunatic, or hearing that such lunatic may, without risk of injury to the public or to the lunatic, be set at large, and also an order from the sheriff for the liberation of the lunatic, to require the superintendent of the asylum in which such lunatic is to liberate such lunatic, and such lunatic shall be liberated accordingly.
In the 17 th Clause of the Act of 1862, however, direct instructions have been enacted as to the discharge of patients, as follows : ” When it shall appear to the superintendent of any asylum or house that any lunatic detained therein has so far recovered that he may be safely liberated without risk or injury to the public or the lunatic, such superintendent shall grant a certificate to that effect, or procure one from the ordinary medical attendant of such asylum or house, and shall transmit a copy thereof to the person at whose instance such lunatic is detained “?and so on, terminating in the patient’s discharge from the asylum. Now, from a careful consideration of these extracts, it will be seen that, whatever may be the practice followed, the view entertained by the Legislature is,. that insanity alone is not sufficient to justify the detention 01 a patient in an asylum, but, in addition, there must be evidence of danger, or threatened danger, to the public, or to the patient himself. Indeed, the same spirit which originally directed that the furious should be cared for by the Crown, as the custodier of fetters, would appear to pervade the Act of 1862; for it is clear that it is not the care, cure, and treatment of the insane which are aimed at, but simply their detention and separation from the world, for the purpose of securing either their own per- sonal safety or that of the public. But even with this explana- tion, we have not yet solved the problem as to the patients who may or may not be detained in asylums. The patient must be dangerous; but the element of danger in a case of insanity is a very variable one, and may depend on many different causes : for example, it will vary materially with the amount of supei- vision exercised by the patient’s friends. In so far as danger to the public is concerned, there is, as a rule, no great room foi doubt, although individual cases of particular difficulty may now and then occur. Assault, threatened injury, and probably also offensiveness to public decency?in fact, any act which, perpetrated or threatened by a sane person, would bring such individual under the jurisdiction of a police-court?would no doubt be admitted as sufficient grounds tor the patient’s deten- tion. When we consider the question of risk of injury to the lunatic himself, however, the case becomes considerably moi’e complicated. As regards attempted or threatened suicide, there would be no difference of opinion ; it is when we have to consider the probable risk of injury to the health of the lunatic, from mental inability to look after himself and his interests, 01* from neglect on the part of his friends to do so for him, that the unsatisfactory nature of this definition becomes fully apparent, for it is evident 110 two cases in this respect can be precisely alike. A person who has friends, able and willing to look after him, would not be suitable for detention, while another labouring under a similar amount of mental defect, without such friends, would be so ; and thus the somewhat curious result is arrived at, that the legality of a person’s deten- tion in an asylum, so far as this can be ascertained from Scotch ?Statute Law, depends on the amount of supervision which his friends and relatives can and are willing to exercise over him at home.
As intimately related to the above subject may be con- sidered the various ways in which patients may be discharged from asylums.
First, a patient may be discharged from an asylum in terms ?f the 17th clause of the Act 25 & 26 Vict. c. 54. This clause PART. I. VOL. II.?NEW SERIES. E G6 REMARKS ON THE LUNACY ACTS (SCOTLAND).
we have already considered in its bearing on the question of the amount of insanity necessary to justify a patient’s deten- tion in an asylum, and need only be referred to here as showing that it is clearly pointed out that the complete recovery of the patient, in the ordinary sense of the term, is not to be waited for, but that the patient snould be discharged as soon as his recovery has reached that point which renders him no longer dangerous to the public, and when, also, his discharge will not prove injurious to himself. In most cases the probable danger and risk to the public can be pretty closely estimated ; but as regards the probable injury to the patient, we are met by the same difficulties which have already been discussed in regard to the question of the patient’s admission : for here, as before, the probable risk to the patient will vary according to the amount of care bestowed on him after he has returned home. Secondly, the same remarks apply to the discharge of patients by the sheriff or Board of Lunacy, in terms of the 92nd clause of the Act 20 & 21 Vict. c. 71. By this clause power is conferred on the sheriff and on the Board of Lunacy to order the dis- charge of any patient on the application of any person having procured and produced the certificate of two medical persons, approved by the sheriff, of the recovery of any lunatic, or hearing that such lunatic may, without risk of injury to the public or to the lunatic, be set at large. Thirdly, a patient may be discharged by being transferred to another asylum, to houses licensed for a limited num- ber of cases, or to the lunatic wards of poorhouses. It is only the last form of transference which here calls for atten- tion. This is effected under the 3rd clause of the Act 25 & 26 Vict. c. 54, and refers to such pauper patients ” only who are not dangerous, and do not require curative treatment.” Here we have rather a startling innovation in the definitions which we have been considering. Hitherto they have been based, more or less, on the legal interpretations ascribed to them; but what is to be understood legally by the term a harmless lunatic, or where is the line to be drawn which separates those who do not require curative treatment from those who do ? The answer to this is rendered all the more difficult when, as we have seen, that by the 17th clause of the Act 25 & 26 Vict. c. 54, it is incumbent on every Superintendent to dis- charge from his asylum (whence it would appear the harmless lunatics are to be transferred) every patient who has ” so far recovered that he may be safely liberated without risk or injury to the public or the lunatic.” Again, does the term “curative treatment” mean the application of all remedies, medicinal and hygienic, physical, mental, and moral, to patients only who can be so cured, or does it also include the same agents employed for the amelioration and improvement of those where so satisfactory a termination cannot be expected ? Far- ther, is the term ” patients who do not require curative treat- ment ” to be regarded as necessarily synonymous with that of patients who are incurable,” or persons who have been duly submitted to treatment for a reasonable time, and whose recovery has to be despaired of?
The object of the Legislature in making the above provi- sion would appear to have been, either to relieve existing asylums, by providing for patients of the imbecile or facile class, supposed to have accumulated in them ; or to inaugurate a bolder policy?namely, to separate the curable and dangerous from those found by experience to have been incurable, and who for a time had committed no serious act of violence. Probably the former was the object originally intended, and if so? it is to be regretted that more definite instructions had not been enacted for the separation of these classes.
The statute does not specify the manner in which this is to be done, nor by whom, further than that the cases for the poor- nouse wards are to be chosen, ” subject to such rules and conditions as the Board may prescribe,” and ” according to xorms, and subject to regulations, approved of by the Board.” ?these forms consist of the sanction of the Board, granted on he application of the inspector of the parish, accompanied by a statement of the patient’s condition, and a medical certificate, generally granted by the parochial medical officer, that the pei son is ” of unsound mind, not dangerous, and incapable of erivmg benefit from treatment in an asylum,” and ” a proper pei son to be placed in the lunatic wards of a poorhouse.” It would clearly be beyond the object of this communication to iscuss the question whether lunatics should be placed in poor- louses or not, or to enlarge further on the subject. It will be sufficient to state that experience has shown the defects of this e ause to be?first, a want of precision in the statutory defini- ion of the cases to be removed; secondly, that the condition 0 the patient is liable to be made secondary, or subservient in consideration, to the question of available accommodation ; and urdly, that unsuitable, dangerous, and even convalescent Patients may be selected for transference.
A patient may be discharged from an asylum by a minute of the parochial board to which the lunatic is chargeable. According to the Act 29 & 30 Yict. c. 51, two clauses, very similar in import, refer to this subject?the 9th Clause, oy which ” it shall be lawful for any parochial board, by a minute at a duly-constituted meeting, to direct that any pauper lunatic Inot being a criminal lunatic), with whose maintenance it is chargeable, and who is detained in any asylum or house, shall be discharged or removed therefrom,” &c.; and the 11th clause, by which ” it shall be lawful for any parochial board, by a minute at a duly-constituted meeting, to remove from the poor’s roll any pauper lunatic, in any asylum or house, for whose maintenance it is responsible, and to entrust the disposal of such lunatic to any party who shall undertake to provide, in a manner satisfactory to the parochial board, for his care and treatment,” &c. The only restriction upon the unlimited power these clauses confer on parochial boards is that, should the superintendent consider ” that such lunatic is dangerous to himself or the public, or in any other way not a fit person to be discharged,” he may report the case to the board (General Board of Lunacy), who, in their turn, may authorise the patient’s continued detention. It does not appear to be in any way, however, obligatory on the part of the superintendent to do anything, or to interfere in this way; and it may thus be said, that these clauses virtually restore the pauper insane to the full control of the parochial authorities.
Finally, a patient may be discharged by the determination of the sheriff’s order, in terms of the 7th clause of the Act 29 & 30 Vict. c. 51. This clause has always appeared to me an extraordinary one, because, in the first place, it can lead practically to no useful results; while in the second place, by limiting the duration of the sheriff’s order to three years, it confers a power on this order which we have seen it did not originally possess, and at the same time suggests the idea that it has a penal force, as if sentencing the patients to a certain length of confinement?a feeling very much at variance with the present views of the treatment of the insane. If the object aimed at by this clause was that of securing that patients should not be unnecessarily detained in asylums, we have seen that this was already fully provided against by the 17tli clause of the Act 25 & 26 Yict. c. 54. From a. careful consideration, then, of the clauses of the Scotch Lunacy Acts, so far as they refer to the admission into,, detention in, and discharge of patients from asylums, it will be found that in many respects they are far from being in harmony with the practical object, now kept in view, in sending the insane to these institutions while to those who have carefully studied the history of this subject for the last twenty years, many of the enactments, especially those of more recent date, will no doubt appear distinctly retrogressive. We have seen, for example, that the principle aimed at by the statute is chiefly the detention of the lunatic as a dangerous subject, rather than his treatment and cure as a patient; that by making a person’s sanity or insanity depend on medical cer- tificates, too great facilities are afforded of sending to asylums helpless paralytics, or others who may have become troublesome to their friends, if but the slightest mental infirmity can be detected in their cases; while in the attempted division of the insane into the harmless, dangerous, incurable, and those amenable to curative treatment, we have a legal enactment of a very unsatisfactory, impracticable, and unscientific character.
It appears to me therefore that a considerable change in the legal terms will have to be made, before any really satis- factory reform can take place in the treatment and disposal of the insane poor. Many circumstances, especially the steady and gradual increase in the number of those now classed as lunatics, would appear to indicate that for the future Lunatic Asylums will have to assume more the functions of places of tieat- ment and of curative establishments than they have hitherto done, whatever other arrangements may have to be devised for the disposal of the fatuous and imbecile insane; but before this can be effected, much clearer and more precise definitions of the various forms of insanity will have to be adopted by the Legislature, than those at present in use ; and especially that the distinction between the patients who are to be sent to asylums for treatment, and those who are to be relegated to other establish- ments merely for conservation, should be clearly set forth by statutory enactment. In short, the mass of mental and physical degeneracy which is at present included under the general term of insanity, will have to be carefully sifted, before the full benefit which Lunatic Asylums are capable of conferring on the insane can be brought into operation : but it is evident that this can never be thoroughly done under a system of legislation which renders it possible that a helpless paralytic can, for convenience, be converted into a lunatic, or a lunatic converted into a sane person, and turned loose on society, merely by a few strokes of the pen ; or that a convalescent patient, in the full and fond anticipation of being soon restored to his friends and his freedom, can by the same means be changed into a harmless and incurable lunatic, possibly to be sent to end his days in the lunatic wards of a workhouse.
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