The care of the insane and their legal control

Front matter

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Preface

THE following pages contain the articles, revised and enlarged, on Lunacy Law Reform which appeared during the course of last year in the British Medical Journal. They are reprinted partly in answer to an objection which has repeatedly been made by the proprietors of private lunatic asylums to their arguments, that they were of little weight, seeing that they were anonymous ; and partly because the subject with which they deal has been announced by the Government as one demanding immediate legislation. The objection taken to the articles because they were in the first instance published anonymously was perhaps a fair feint to use against them ; but their authorship from the first has not been a secret, and as in these pages opinions are expressed which must seem to need the authority of special knowledge, the medical profession at large has a right to be assured by whom they are propounded ; and the Author in this republication not only declares his responsibility, but the earnestness and sincerity with which he entertains the opinions thus put forward the result of a very varied

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experience of thirty-nine years, during which he has enjoyed the largest opportunities of observing the care and treatment of the insane in every part of the country, both in public and private asylums and in domestic life. The Author cannot expect that in questions so debatable and debated, and involving so many personal interests as those which he has here discussed, but that his opinions will be warmly controverted, and he is too well acquainted with the vis inertice of established systems to believe that they will be readily adopted. But if they only hasten the inevitable hour when the public will declare that the most helpless and pitiable of their fellow-subjects shall no longer be confined and detained as a profitable private business, and if they only lead this great open profession of medicine to question the right by which it permits a most important class of diseased persons to be sequestered from its care, the publication of these pages will not have been in vain. The Author owes some explanation to two classes of persons for the freedom with which he has stated his opinions. In the first place he has to express his regret that he has been compelled to include in that which may appear a general censure those medical men who are as honestly engaged in the treatment of mental diseases, even in private asylums, as medical men in any other sphere of their art and science. The Author, well knowing that there are such men, has always felt sympathy for them, and it was of these he was thinking when before the Select Committee of 1877 he declared that he should be very sorry to see all private asylums abolished. But a few personal exceptions ought not to bate the breath of needful criticism applied to a system intrinsically and generally

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bad. And it is improbable that any legislation will interfere with the legitimate work of the true physician. Rather is it likely to reinstate him in his right sphere of dignity and usefulness if he should have wandered from it by becoming the keeper instead of curer of diseased persons. Those physicians who are really skilled in one of the most difficult departments of the medical art, the treatment of mental disease, need scarcely fear that legislation will ever tie their hands as physicians. Nor is it likely that the common or statute law will prevent them from keeping private hospitals for willing and consenting patients. It is in their character of custodians, and in their association with capitalists and speculators in the business of confining and detaining the inmates of these institutions against their will, that physicians engaged in the treatment of the insane must expect to be criticised by their professional brethren and by the public, and controlled by the law and its officers, without much regard to that professional dignity of which they have not themselves been too careful.

The Author also admits the debt of an explanation to the Earl of Shaftesbury and to the Board of Commissioners in Lunacy, over which his lordship has presided since its establishment in 1845. When we read the well-authenticated descriptions of what lunatic asylums were when Lord Shaftesbury commenced his herculean task of cleansing them ; when we think of his steady application to the labour of reforms, and to the more irksome labour of maintaining the good ground gained from relapse into the evil from which it had been won ; when we think of the mere routine of official duties in behalf of those who could not repay them even by thanks,

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and of the unofficial work in season and out of season, in the House of Commons and the House of Lords, in offices and committee-rooms, everywhere but in place ; and when we think of the genius and eloquence and power of the man who has devoted himself to this life-long labour, it is but very little to say that every one, whether interested or not in the well-being of the insane, must reverence such an example of unweariness in well-doing.

But the task which Lord Shaftesbury has carried thus far is one which can never be perfected until the art and science of medicine have reached their extreme limits; and in challenging the interest and co-operation of all who are able to understand the wants of the insane, and to assist in ameliorating their condition, he himself invites criticism of the past and suggestions for the future. This free mindedness with regard to outside criticism is the truest wisdom, and nothing can be more unwise than the opposite feeling, so common in official circles, that it must be right because we have done it, and what you say against the laws which we administer you say against us — the old " fallacy of authority,'' as it was denounced by Bentham. It is an error to which the least experienced and thoughtful officials are most liable, but a man with Lord Shaftesbury's vast experience and wide grasp of principles, a statesman more than a politician, and above all a social reformer, must recognize that there is no finality in the march of science applied to such a subject as the care and treatment of the insane. The last Parliamentary inquiry

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into the operation of the Lunacy Laws may have been hasty and premature in its inception as it was long drawn out and superficial in its course But, protracted as it was, the witnesses examined were by no means all those who were necessary for the purpose of obtaining full and true answers to the interrogations of Parliament ; for persons with the temper of martyrs are scarcely those who are least likely to have been insane ; although persons who have been insane and know it are the least likely to come forward publicly after their recovery to complain either of undue detention or of ill-treatment. No one was content, and the subject was not even shelved, although the impression went abroad that such was the intention of the report ; the inevitable result being that the feeling of , . the public has since become more uneasy and distrustful even than before. Nor was this unnatural, seeing that the one thing really proved in the tedious inquiry was the existence of great differences of opinion on the more important questions between Scotch Commissioners and English Commissioners in Lunacy, and between the latter and the Lord Chancellor's visitors. And there seemed to be little consistency anywhere except among the proprietors of private asylums, who defended their interests with courage and ability, and the solidarity generated by a common danger.

The origin, action, and conclusions of this Select Committee, from the terms of its appointment to the comments of the Commissioners in their last report, are singularly loose and illogical, as if every one who touched the subject was bound to become a little incoherent. The reference was "To inquire

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into the operation of the Lunacy Law so far as regards the security afforded by it against Violations of Personal Liberty." But the very object of the Lunacy Law is to authorize violations of personal liberty, under certain circumstances and formalities. Under this strange reference the Select Committee proceeded to investigate, (i) The possibility of imprisonments under the false allegation of lunacy ;

(2) Of restraint calculated to retard cure ; and

(3) Of undue obstacles to release when sanity has been restored. They never proposed and they never attempted to investigate the more difficult but vastly more important questions as bearing upon violations of personal liberty, whether harmless lunatics are not unduly deprived of liberty, or whether undue obstacles are not opposed to the release of persons who are almost restored to sanity. They started with that stereotyped prejudice that a lunatic is a lunatic and an asylum the best place for him ; and they concluded, "assuming that the strongest cases against the present system were brought before them, allegations of mala fides, or of serious abuses, were not substantiated." That is to say, they did not find what they could admit to be abuses according to the rules they had laid down. The whole community might have influenza, but if cholera and the plague were absent there was no need for anxiety. Upon this conclusion, however, the Commissioners of Lunacy in their 33rd Report published last August, remark that "such language, guarded though it be, is, we repeat, not unsatisfactory to us, on whom necessarily rests much of the responsibility for the due administration of the Lunacy Law," and so for the present the matter is supposed to rest ;

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with a few suggestions of change in the law made by the Commissioners, which are certainly not of that radical sort which they " are not disposed to advocate." They are quite satisfied that the " present system of certification affords ample safeguards as well against the admission of persons of sound mind as from the discharge of the insane patients without undue detention." How the system of certification provides for the discharge of patients at all is not explained, but it appears that it does so, and in a manner with which the Commissioners " are quite satisfied." Still the medical certificates are " certainly susceptible of improvement." It has long been the practice of the Commissioners to require that the names of persons furnishing facts indicative of insanity not observed by the certifier himself should be given on the certificate. The Author has pointed out that this most important requirement is merely a regulation of the Commissioners, and that disobedience to it would not invalidate a certificate; and the Commissioners now very properly declare that " we should be glad to have both names and addresses under a statutory requirement in all cases." As to the orders for Reception, the Commissioners suggest the substitution of the word " authority " for " order " They think it undesirable that this authority should be given by a friend, acquaintance, or a servant, unless no relation can be found, which fact should be stated, and they suggest that the authority for reception should contain an undertaking by the person signing it to visit the lunatic either personally or by deputy once in six months. Another alteration is suggested, the need of which the Author was made aware of in his capacity of Visiting Justice to the

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Warwick Asylum, to which institution all the pauper lunatics from the Coventry Union were certified and sent by a comfortable official clique of union officers, namely, the relieving officer, the union doctor, and the union chaplain. The Commissioners propose to erase this blot by making it a condition of the validity of an order signed by an officiating clergyman and relieving officer that notice should have first been given to a justice, and that it should be stated in the order why the justice could not act.

In defence of proprietary lunatic asylums, the Com missioners declare respecting the " incarceration of sane persons, or the prolonged detention for corrupt motives of insane persons who have entirely recovered their reason, under the strict supervision and the safeguards which the Lunacy Acts provide no such abuses are possible." But these assurances do not meet the allegation that " the temptation exists to keep profitable patients longer than necessary," and the assertion that no cases of undue detention were discovered is not easily reconcilable with the evidence. The Commissioners explicitly admit that the keeping of private asylums is a business when they urge that persons so employed " are competing with each other and with the hospitals in a business which, to be remunerative, must be conducted on principles of ordinary prudence and common honesty." No doubt there is a rivalry as to who shall get the patients, but is there any rivalry as to who shall discharge them ? A discharged patient is like a dead customer, and the rivalry of cures is an argument which can scarcely be discussed seriously. In the first place the value of the statistics of cures in proprietary asylums is

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problematical, for there is no compulsion to ticket a man rightly whose friends decide upon removing him ; and there is no inducement, as in county asylums, to avoid discharging patients as cured lest they should speedily return to betray a blundering diagnosis. What becomes of the patients discharged from licensed houses, who can tell ? Not the Commissioners, certainly, for Lord Shaftesbury says that in one year 131 patients to whom the Commissioners had given leave of absence from metropolitan asylums, " never came back ; we never inquired after them ; we were glad they did not return to the asylum." [Question 11,278]. A pauper patient uncured is almost sure to be brought back to an asylum because he cannot earn his living, but a patient who is removed from a private asylum uncured may remain out supported by his means or his friends. If the Commissioners do not know what becomes of patients discharged on trial from their asylums, still less can they know anything of those who have been ostensibly discharged cured. And if the statistics of private asylums are so unreliable, of what weight is the Commissioners' argument that " every cure becomes the best advertisement of the establishment in which it is effected ?" Lord Coleridge upset this argument from the bench by getting a Commissioner as a witness to admit the great desire of the friends of lunatics to keep the calamity secret, a desire which was even augmented in case of cure, and the Commissioners' reply that the number of cures was known does not apply to the language of their Report, which speaks of "every cure that can be shown becomes, in fact, the best advertisement." " That the licensed houses supply at present asocial want " may well be admitted

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seeing that no earnest effort has yet been made to " substitute other and better establishments," but the doubt expressed that asylums erected at the public cost '■ would not be more acceptable to the friends of wealthy patients than the hospitals, which do not receive many lunatics of large fortune," is scarcely worthy of a public board taking a large view of the policy most advantageous for the whole community. If the friends of lunatics of large fortune no longer had the opportunity of locking up such lunatics in houses competing with each other in a remunerative business, if they should be so prejudiced as to dislike asylums erected at the public cost, they would still have the alternative of employing the lunatic's wealth in placing him in an establishment of his own as a single patient, an alternative which the Lord Chancellor would be very likely to insist upon, unless the lunatic of large fortune was, in some way or other, restrained from his beneficial jurisdiction.

Without considering for the moment that greater evil which arises from " the temptation to keep profitable patients longer than necessary " in houses where a remunerative business is carried on, it is surprising that the Commissioners do not seem to recognize the burthen of excessive payment in behalf of lunatics in private houses which falls upon the inmates and their relatives ; for there can be no doubt that the average payments in a hospital are 50 per cent, less than the payments for equivalent accommodation where it can be obtained in a private asylum.

It was urged at the discussion on the Author's paper on Private Asylums read before the British Medical Association that the secrecy which obtained in

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proprietary asylums with regard to their inmates was a great inducement to the friends of lunatics to place them in these institutions ; but the Author replied that there certainly was no more secrecy in proprietary asylums than in hospitals for the insane, both institutions being visited officially by governors or visitors, and the officials of the one being as much under the obligation of secrecy as the proprietors of the other, and that one curious inducement not to desire secrecy does not exist in public establishments which is sometimes seen in operation in the private houses, namely, that the presence of some distinguished inmate becomes known as a kind of advertisement. To both places the observations of Lord Shaftesbury apply : —

" Some persons might be afraid that these [hospitals for the insane] would lead to publicity, and destroy the privacy which they now seek. But I really do not believe that that result would at all take place. I do not see that there would be the slightest publicity greater than there is now. Many persons whose families are afflicted with lunacy think that they arc keeping the fact in entire privacy ; but it is an error. If there is an insane relative in any family it is invariably known. The world may not know where he is ; but no family ever succeeded in suppressing a knowledge of the fact that there was a mad member connected with it." [Question 556. 1859].

Hospitals for the insane, therefore, such as we have among us at Northampton, Cheadle, Gloucester, Nottingham, Leicester, Stafford, York, Exeter, &c, with at least equal privacy as regards the individual patients, afford equal or superior accommodation and treatment for half the cost of that to be had in proprietary asylums ; and their salaried officers are

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under no " temptation to keep profitable patients longer than necessary.'' These form a class of institutions so different in most important respects to proprietary asylums that we cannot understand Lord Shaftesbury's opinion that the latter " vie with them perfectly." That any one of them " in the hands of a weak committee might easily be worked so as to become an establishment mainly for the personal benefit of the resident staff" is undeniable, and the suggestions which the Commissioners have made for the improvement of the laws respecting those institutions are highly commendable. One most important suggestion, however, may be added, namely, that the central authority in lunacy should have the power at any time of nominating a certain proportion of the members of the governing body, and of filling up vacanies occurring in that body which are left unfilled. Moreover an official audit of accounts should be exacted. These remarks apply to the existing hospitals, which have been founded by the benevolent efforts of a former generation, and which do not seem likely to be repeated ; and the Commissioners very prudently decline to predict whether Parliament or the country would authorize a compulsory charge on the county rate to multiply such establishments at the present time. In 1859 Lord Shaftesbury earnestly recommended that this should be done, in his admirable evidence from Questions 507 to 562, but the Committee in their Report, while acknowledging " the great deference which is due to Lord Shaftesbury's opinion," came to the conclusion that " the apprehension of a burthen to be imposed upon the [county] ratepayers would render such an enactment inoperative ; and they

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cannot recommend the establishment of them upon a compulsory system."

The Select Committee of 1877 came to a different conclusion, adopting the moderate opinion of those witnesses who, looking forward to the time when there would be sufficient accommodation for all classes of the insane in public institutions, believed that there would be no demand for licensed houses for the upper and middle classes through the spontaneous action of the public in removing the inmates of such houses to the public institutions, and the Committee " suggest that legislative facilities should be afforded, by enlargement of the powers of magistrates or otherwise, for the extension of this system," to wit, of public institutions for the insane of the upper and middle classes. Such appears to be the meaning of the involved paragraph in which this Committee have conveyed their conclusions and suggestions on the most important question, whether or not the licensed houses ought to be left in possession, or suddenly abolished, or gradually suppressed. The verdict is adverse to them, and the sentence is suppression by supercession.

It is of minor importance how the supercession shall be effected ; whether by the operation of the magistrates and the county rates, or " otherwise," as the Author believes to be best. But it may be observed in passing that the county-rate scheme did not commend itself to the older Select Committee of very able and practical men. There are many counties in which a hospital for the insane of the middle and upper classes is not at all wanted, either from lack of patients or because they already possess an institution of the kind. In others a compulsory measure would be felt to be oppressive,

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and voluntary legislation would be inoperative. Moreover county hospitals for the insane would probably be of one type, like county asylums ; whereas hospitals established in the first instance, as the Author proposes, by Government, might be, and ought to be, of different kinds and capacities ; some for the insane of small means, others for " those lunatics of large fortune" who so much influence the opinion of the Commissioners in favour of the present system. But whatever the authority and the source of supply fixed upon for the work, it is essential that the legislative enactments should not be of that kind of bastard law which is called permissive, and which cannot in such a matter but lead to delay and mismanagement and disappointment. No one can well be more opposed than the Author to interfering and unnecessary legislation outside the proper functions of Government ; but surely if anything beyond the defence of the country and the punishment of crimes does come within the proper function of Government, the provision of means by which persons who have to be incarcerated for long periods shall be properly incarcerated will come within the most stringent limit of right and needful State duty. If the State is right in undertaking the imprisonment of a man who has committed an offence, on what ground would it be wrong in undertaking the imprisonment of a man whose liberty would be dangerous to the community? If lunatics might legally be imprisoned for other reasons than safe keeping, say for medical treatment for themselves, or for the comfort of other persons, the duty of State interference would not be so obvious. But the legal justification being danger, it would scarcely seem to admit of question that the

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State ought to provide officers and places of detention whereby the security of the public may be ensured by restraining the liberty of individuals. Lunatics who, being dangerous to themselves or others, refuse to be forcibly deprived of their liberty, ought only to be confined in State asylums, while space and range enough might be left in licensed houses of the very highest character, which Lord Shaftesbury is so anxious to preserve, for harmless patients who are voluntary inmates. The public are, perhaps, not fully aware of the extent to which the residence of the inmates in two or three of the best asylums is already voluntary. 1 The proprietor of two of these places has recently published his success in abolishing locked doors throughout his two asylums, the result being that " there have been no attempts to escape, and, what is more curious to remark, those patients who used formerly to stand near the doors on the watch for a chance have now given up the habit. Many whose intellect is but slightly or only occasionally impaired, and many others who have been discharged recovered, have expressed the immense sense of relief they have experienced from the change." In conjunction with this open-door system of management, the enlightened proprietor of these private asylums " advocates in every instance where it is possible the plan of voluntary seclusion," i.e. residence. A considerable number of his patients are residents on theirown application, under the proviso that they shall be discharged three days after making another application to that effect, and the system "has been most beneficial in cases in which the mental aberration is only partial," as "the relations of the

1 Report on Saujjhton Hall and Balgreen Asylums, 1S79.

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patient are necessarily of a more assuring character than in the ordinary confinements under order and medical certificates." " It is in any way the most comfortable method of dealing with a certain class of cases. It certainly fulfils most thoroughly all the conditions of treatment based on non-restraint." Two large asylums for paupers, also in Scotland, are conducted on this open-door system, and the principle has long been acted upon, as far as English laws permit, in the excellent Manor House Asylum at Chiswick. It is interesting to observe that a great authority on the principles of law, Professor Amos, in his recent work, Fifty Years of the English Constitution, explains the anomalies of practice in the law affecting lunatics upon the supposition or legal fiction that a certain amount of assent on the part of the lunatic is attained, or reasonably assumed to the aggressions made upon him for his own protection (p. 460). But when such things are being done and becoming known, how much longer can the authorities uphold the wooden system of treating all lunatics alike ? How long will the manufacture of " asylummade lunatics " be permitted to continue for the support of a remunerative business ? How long will morbidly sensitive minds be subjected without dire necessity to trials which even the strongest cannot endure without danger and disaster ? Lord Shaftesbury, speaking of the number of medical men and attendants who become insane under the strain of associating with lunatics, says, " The Committee can well imagine what it must be to be perpetually in the presence of lunacy, some of them in the most excited state, and some most despondent, and never hardly to pass a night in which they are not disturbed ; it has the

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most lowering and most miserable effect upon the nervous system." [Question 781. J

Can it be wondered at, if such be the effect upon stout and insensible minds that the " animula blandula vagula " of lunacy, introverted by such associations should shrivel and perish ? Even in the vast almshouse establishments where public thrift must deal on the most economic terms with the ever-increasing multitude of our destitute insane, great care ought to be taken that this danger is averted as much as possible by skilful classification and dispersion, and in this direction the Author has long laboured by means of the system he introduced of isolated and cottage wards. But after all a congregation even of pauper lunatics is a great, though doubtless an unavoidable evil, while a system which compasses the herding together of lunatics of large fortune, or even of competent means, for any purpose but the important one of public safety, is but a mouldy method of routine and prejudice. For opulent patients certainly, the smaller the asylum is the less the objection to it, and one would have thought that in the interests of the insane no objection could have been taken to the asylum recently licensed by the Sussex magistrates for four male patients, " well situated in a fine country, and standing in grounds of 100 acres, the house containing good and well-proportioned rooms." But the Commissioners "are averse from the multiplication of houses licensed for three or four patients. They supply no urgent demand and cause great waste of public time in the visitation which they entail."

What reception then can the Author expect from the Commissioners forhis opinion that for harmless lunatics xxii PREFACE.

of large fortune, or even of competent means, asylums licensed for two or three inmates, or still better wellregulated domestic life as single patients, are infinitely preferable both for curative treatment and for happiness. Fortunately the Author can point to the single-patient system, as carried out under the authority of the Lord Chancellor, with untold blessings to the great majority of those who enjoy it, and without regard to the great consumption of time which is entailed by the visitation of those single lunatics four times a year by the Lord Chancellor's visitors, and as many times by the committees of the person, whereeverthe lunatics may dwell.

Thus it will be seen that the Author's scheme of a reformed treatment of the insane of the upper and middle classes comprises: 1st, the establishment of State asylums no more public than the existing institutions, some for the opulent insane for whom asylum restraint is needful, and others for the less opulent insane for whom asylum restraint and the economy of resources is needful. 2nd, the organization of domestic treatment for the quiet and harmless insane as single patients under satisfactory medical management and official inspection. 3rd, the reorganization of the best existing private lunatic asylums and of any new ones for three or four patients, resembling that one in Sussex, which the Commissioners have animadverted upon ; the entrance to such asylums to be voluntary, and the detention not to exceed a moderate and fixed period after an inmate has given written notice applying for discharge.