Yet it may be that a plea for their detention might be sustained in the case of sick or invalid patients (with whom the insane would be numbered) under certificate of the parochial medical officer, provided no friend came forward to guarantee their proper care, or that they could not show satisfactorily the means of obtaining it; for, of such cases, the workhouse authorities may be considered the rightful and responsible guardians, required in the absence of friends to undertake their charge and maintenance. Upon such grounds, probably, cause might be shown for the detention of the greater part of workhouse lunatic inmates, although there is no Act of Parliament explicitly to sanction it. Should such a plea be admitted, the notion, entertained by Dr. Bucknill, that an action would lie for false imprisonment against the Master and Guardians of the workhouse, would be found erroneous.
The Lunacy Commissioners presented some remarks on this question, indicating a similar view to that just advanced in their ‘Further Report,’ 1847. For instance (p. 287, op. cit.), they observed:—
“How far a system of this kind, which virtually places in the hands of the masters, many of whom are ignorant, and some of whom maybe capricious and tyrannical, an almost absolute control over the personal liberty of so many of their fellow men, is either warranted by law, or can be wholesome in itself, are questions which seem open to considerable doubt. Probably if the legality of the detention came to be contested before a judicial tribunal in any individual case, the same considerations of necessity or expediency which originally led to the practice, might be held to justify the particular act, provided it were shown that the party complaining of illegal detention could not be safely trusted at large, and that his detention, therefore, though compulsory, instead of being a grievance, was really for his benefit as well as that of the community.”
Again, in the second place, the law, without direct legislation to that effect, yet admits,—by the provisions it makes for pauper lunatics not in asylums or licensed houses, and by the distinction it establishes between persons proper to be sent to an asylum, and lunatics generally so-called,—that insane patients may be detained elsewhere than in asylums. For instance, by sect. lxvi. 16 & 17 Vict. cap. 97, 1853, provision is made for a quarterly visit by the Union or Parish Medical Officer to any Pauper Lunatic not being in a Workhouse, Asylum, Registered Hospital, or Licensed House, in order that he may ascertain how the lunatic is treated, and whether he “may or may not properly remain out of an asylum.” So likewise by sect. lxiv. of the same Act, the clerk or overseers are required to “make out and sign a true and faithful list of all lunatics chargeable to the Union or Parish in the form in schedule (D).” This form is tabular, and presents five columns, under the heading of “where maintained,” of which three are intended for the registry of the numbers not confined in Asylums, Hospitals, and Licensed Houses, but who are (1) in workhouses, (2) in lodgings, or boarding out, or (3) residing with relatives.
Further, the law distinguishes, by implication, a class of lunatics as specially standing in need of Asylum care, and as distinct from others. By the Poor-Law Amendment Act (4 & 5 Will. IV. cap. 76. sect. 45), it is ordered that nothing in that Act “shall authorize the detention in any workhouse of any dangerous lunatic, insane person, or idiot for any longer period than fourteen days; and every person wilfully detaining in any workhouse any such lunatic, insane person, or idiot for more than fourteen days, shall be deemed guilty of a misdemeanour.” This section is still in force, is constantly acted upon by the Poor-Law Board, and is legally so read as if the word ‘dangerous’ were repeated before the three divisions of mentally-disordered persons referred to, viz. lunatics, insane persons, and idiots. So, likewise, by sect. lxvii. (16 & 17 Vict. cap. 97)—the “Lunatic Asylums’ Act, 1853,” now in operation,—the transmission of an insane individual to an asylum is contingent on the declaration that he is “a lunatic and a proper person to be sent to an asylum.”
Moreover, by sect. lxxix. of the same Act, it is competent to any three Visitors of an asylum, or to any two in conjunction with the Medical Officer of the asylum, to discharge on trial for a specified time “any person detained in such asylum, whether such person be recovered or not;” and by the following section (lxxx.) it is ordered, that, upon receipt of the notice of such discharge, “the Overseers or Relieving Officers respectively shall cause such lunatic to be forthwith removed to their parish, or to the workhouse of the Union.” By the 79th section it is further provided, that “in case any person so allowed to be absent on trial for any period do not return at the expiration of such period, and a medical certificate as to his state of mind, certifying that his detention in an Asylum is no longer necessary, be not sent to the Visitors, he may, at any time, within fourteen days after the expiration of such period, be retaken, as herein provided in the case of an escape.”
On the other hand, simple removal from an asylum is by the 77th section, curiously enough interdicted except to another asylum, a Registered Hospital, or a Licensed House. This intent, too, of the section is not changed by the amendment, sect. viii. 18 & 19 Vict. cap. 105. Lastly, no other place than an Asylum, Registered Hospital, or Licensed House, is constituted lawful by sect. lxxii. for the reception of any person found lunatic and under “order by a Justice or Justices, or by a Clergyman and Overseer or Relieving Officer, to be dealt with as such.” But this section has to be read in connexion with preceding ones, for instance, with sect. lvii., by which it is laid down that the Justices or other legal authority must satisfy themselves not only that the individual is a lunatic, but also that he is “a proper person to be sent to an asylum.”
These quotations indicate the state of the law respecting the detention of lunatics elsewhere than in asylums. This state cannot be held to be satisfactory: it evidently allows the detention of lunatics in workhouses, while at the same time it affords them little protection against false imprisonment, and makes no arrangement for their due supervision and care, except by means of the visits of the Lunacy Commissioners, which are only made from time to time, not oftener than once a year, and rarely so often. The alleged lunatics are for the most part placed and kept in confinement without any legal document to sanction the proceeding; without a certificate of their mental alienation, and without an order from a magistrate. Within the workhouse, they are, unless infirm or sick, treated like ordinary paupers, save in the deprivation of their liberty of exit; they may be mechanically restrained, or placed in close seclusion by the order of the master, who is likely enough to appreciate the sterner means of discipline and repression, but not the moral treatment as pursued in asylums; and, lastly, they live deprived of all those medical and general measures of amelioration and recovery as here before sketched.
An extract from the ‘Further Report’ of the Commissioners in Lunacy will form a fitting appendix to the observations just made. It occurs at p. 287 (op. cit.), and stands thus:—
“It certainly appears to be a great anomaly, that while the law, in its anxiety to guard the liberty of the subject, insists that no persons who are insane—not even dangerous pauper lunatics—shall be placed or kept in confinement in a lunatic asylum without orders and medical certificates in a certain form, it should at the same time be permitted to the master of a workhouse forcibly to detain in the house, and thus to deprive of personal liberty, any inmate whom, upon his own sole judgment and responsibility, he may pronounce to be a person of unsound mind, and therefore unfit to be at large.”