The tests of insanity in these cases differ from those required in criminal cases, where the knowledge of right from wrong is imperatively demanded. The mental defect must not be the result of ignorance or want of education, and at one time commissions were only issued when it was shown that lunacy and idiocy alone existed, imbecility or mere weakness of mind not being deemed sufficient to deprive a man of his civil rights, or to place him under the protection of the Court.
To so great an absurdity did this lead, that the man suffering from a delusion sufficient to be comprehended under the legal term “lunacy” was protected, whereas the feeble-minded were left without interference, though needing it more. The cost of these commissions sometimes reached almost fabulous sums. The expense has been somewhat lessened by recent enactments, and the process simplified—the Lord Chancellor having it in his power to direct an inquiry before two Commissioners, thus dispensing with a jury. (See the 16 and 17 Vict. c. 70, and 25 and 26 Vict. c. 86.)
In Scotland, however, the law is far more simple. The cognition proceeds on a brieve or writ addressed to the Lord President of the Court of Session, and directs him to inquire “whether the person sought to be cognosced is insane, who is his nearest agnate, and whether such agnate is of lawful age.” “And such person shall be deemed insane if he be furious or fatuous, or labours under such unsoundness of mind as to render him incapable of managing his affairs.” “The trial is before a judge of the Supreme Court and a special jury. If the insanity be proved, the nearest agnate—relation by the father‘s side—is by law entitled to the guardianship.” No one not a near relative can institute these proceedings.
In Scotland also, the trial by jury may be avoided by applying by petition to the Court of Session for the appointment of a judicial factor or curator bonis. Of this appointment the alleged lunatic is informed, which, if he please, he may oppose; medical evidence is received, and on this the Court rests its decision—the usual course being to remit the case to some competent person to make inquiry, take evidence, and report. The Commissioner is usually the Sheriff.
Examination of the Insane.—A few words of caution need here be said. Medical men will consult their own dignity and that of their profession by remembering that in cases of alleged insanity, as in fact in all other cases when their opinion is sought, they are not justified in taking sides. Their evidence will be the more valuable in proportion to the care they take in examining into the facts of the case, and the good sense and judgment shown in their examination of the patient. To distinguish between the mistakes, the result of ignorance and want of education, and those the result of a feeble mind, is of primary importance. It is no sign of insanity in an uneducated farmer that he knows not the pons asinorum. All cases should be tested by considering the surroundings and possible degree of culture of a person placed under like conditions as the party under examination. Has he shown himself capable of an average amount of culture? or is his mental condition inferior to what one might legitimately expect under the influences to which he has been subjected? The medical examiner should also direct his attention to this important point, setting aside all legal and medical theories of insanity, viz.—“Is the case of such mental disorder as to create an incapacity for managing affairs.”
TESTAMENTARY CAPACITY
A medical practitioner may be called upon to give evidence as to the capacity of a testator to make a valid will. An ordinary person witnessing a will does so to fact only, but if a medical man do so it implies that he was of the opinion that the testator was fit to make a will and of a sound and disposing mind. In making an examination of a person for fitness to make a will, the medical man must endeavour to find out if the testator understands the nature of his action, and all the details associated with it; also if he knows the nature and amount of his property, and the claims or otherwise of those who may become beneficiaries under it. Further, has he such a delusion as may influence his will in disposing of his property, and bring about a disposal of it which, if the mind had been sound, would not have been made.
A person may have a delusion or delusions without interfering with the making of a will. If the “disposing mind” be left intact, testamentary capacity is upheld. In severe illness and old age the mind may be so disturbed, without true insanity being present, that a person is rendered incapable of making a will. In all such cases the medical man should be sure of his ground before granting, if requested, that the patient is capable or otherwise. It is a good plan, when examining a patient as to testamentary capacity, to have the will produced, and privately read it out to the person and ask if it be correct, then to have the person repeat the dispositions of the will, and see if they coincide with the contents of the document.
People who are aphasic may make wills which are valid. Difficulties arise in cases of sensory aphasia.