Orders after Inquisition.—This constitutes a legal investigation as to whether or not a person is capable of managing his or her own affairs, and whether restraint is necessary. It is conducted before a judge, with a jury if the alleged lunatic demand one, unless the judge is satisfied by personal examination that the lunatic is not mentally competent to understand the demand for a jury. In such a case the medical man is only concerned as a witness.

According to circumstances the alleged lunatic may be kept under restraint, or remain at liberty with the control of his or her affairs under a “Committee of Estate”; or, if declared sane, set free and with control of his estate.

Summary Reception Orders.—When a lunatic is not under proper control, and if without relations or friends, and there be no one who will sign a petition for detention, or when a lunatic is uncared for, cruelly treated, and is found so by a medical practitioner, his duty is to inform a constable, relieving officer, or overseer of the parish of the fact. The official will then make a statement on oath to a Judicial Authority, who will direct two medical practitioners to make the necessary examinations, and if satisfied he will issue an order for the removal of the individual to an asylum. The procedure followed will then be the same as for a “petition for reception.” Under a summary reception order the Judicial Authority may place the person under the care of a relation or friend, or the visitors of the asylum in which the person is intended to be, or is placed.

Lunatics Wandering at Large.—Every constable, relieving officer, or overseer of a parish who knows of a person, whether pauper or not, who is deemed to be a lunatic and wandering at large, shall apprehend and take such person before a Justice, or if the Justice receive information on oath, he may have the person apprehended and brought before him. The Justice has the person medically examined, and if certified a lunatic to the satisfaction of the Justice, he may issue an order for detention; if the medical man certify that the person is not fit for removal, the removal is postponed until the person is certified fit for it.

The above proceedings are not necessary if it be considered a matter of public safety and for the good of the alleged lunatic that immediate detention be carried out. The constable, relieving officer, or overseer of the parish may remove such person to the workhouse of the union in which the person is, and detain him for not more than three days. Before the expiration of that time the necessary proceedings under the Lunacy Act must be taken.

Reception Order by two Commissioners.—Any two or more Commissioners in Lunacy may visit a pauper lunatic or an alleged lunatic not detained in a workhouse or lunatic asylum, and if satisfied after certification by a medical man that the person is a lunatic, order removal to an asylum.

Pauper Lunatics.—A medical officer of a Poor Law Union who has knowledge that a pauper within his district is alleged to be a lunatic, shall notify the relieving officer or overseer of the parish where the pauper resides of the fact, who within three days shall notify a Justice, who will interview the alleged lunatic and call in a medical practitioner to examine and certify. If the Justice be satisfied that the person be a lunatic, he makes an order for removal to an asylum. One medical certificate only is necessary.

Escape of Lunatics.—An escaped lunatic may be retaken at any time within fourteen days without a fresh order.

Discharge of Lunatics.—The reception order remains in force for periods of one, two, and three years, and then for periods of five years. At the end of any of these periods the Lunacy Commissioners may continue the detention of the lunatic, if satisfied by certification from the medical man of the institution, or the usual medical attendant of the lunatic, that the patient remains of unsound mind and further detention is necessary.

The petitioner of the reception order may request the discharge of a patient. The discharge may be refused if the medical man in charge certifies the lunatic dangerous and unfit to be at large, unless two of the visitors to the asylum or the Commissioners visiting the asylum or house give their consent in writing.

Two Commissioners—one medical, the other legal—may order the discharge of any patient.

When a patient recovers, the medical attendant of the institution notifies this to the petitioner or person responsible for the payment on account of the patient. Should the patient not be removed within seven days of such notice, the patient may be discharged “forthwith.”

PROCEDURE IN SCOTLAND

Idiots and imbeciles under eighteen years of age may be received into training schools without the legal procedure which obtains in England and Wales. They are sent to these institutions as lunatics, however, under the usual legalities, in order that the Government grant may be obtained. When over eighteen years of age, if sent to institutions other than training schools, they are classed as lunatics, and the necessary legal procedure is followed.

Insane persons whose malady is not confirmed may be cared for privately for a period not exceeding six months. The certificate of one medical practitioner only is required.

Insane persons, pauper or not, can be placed in an asylum by order of the Sheriff, by petition and two medical certificates. The inspector of the poor acts as petitioner for paupers.

In cases of urgency a certificate of emergency from one medical practitioner is required, along with a request from the petitioner, to the superintendent of the asylum.

A person who is prodigal or facile can be restrained from alienating his property by guardians appointed by the Court.

When a lunatic is found to be incapable of administering his or her estate, the Court appoints a Committee of Estate.

PROCEDURE IN IRELAND

The procedure differs in pauper and private cases.

Pauper patients, not dangerous.—In order to detain such a pauper there must be a declaration of insanity and destitution, with the names and addresses and descriptions of two relatives of the person, given before a magistrate. A magistrate and a clergyman or poor-law guardian must certify that they have personally inquired into the case. One medical certificate is necessary. The applicant must remove the patient when called upon.

Paying patients who are not dangerous, for admission to a district asylum, are under more stringent regulations. A declaration that they are unable to pay the expenses necessary for support in a licensed house must be made before a magistrate; further, that there is no friend who can undertake this; and a statement of the length of time the patient has resided in the country. A magistrate and clergyman must certify that they have investigated the case. One medical certificate must be signed by two practitioners. A guarantee for the payment must be given, and also to remove the patient when called upon. The sanction of an inspector of lunatics must be given.

For admission into licensed houses, charitable institutions, and single care, an order by a relative or connection of the lunatic is required with two medical certificates, unless urgent, when one is sufficient, but a second must follow within fourteen days.

LIABILITIES OF PERSONS SIGNING
LUNACY CERTIFICATES

A medical practitioner is bound to certify as to the sanity of a person. If, however, he undertakes to fill up the certificates necessary for the detention of an alleged lunatic, he becomes responsible to the authorities for the correctness of the certificates, and if he make a wilful misstatement of facts he is guilty of a misdemeanour. The medical practitioner may have an action brought against him by the lunatic when recovered or discharged. The most vindictive feelings may be entertained against the medical man. In such a case, if the medical man proves his “good faith” and the exercise of “reasonable care” in his examination and certification, he receives the protection of the Court.

LIABILITIES OF PERSONS RECEIVING
INSANE PATIENTS

In the case of Nottidge v. Ripley and Nottidge, the Lord Chief Baron having been understood to intimate an opinion that no person ought to be so confined unless he is dangerous to himself or others, the Commissioners pointed out that the scope of the Lunacy Acts is not thus limited. They said:

“The object of these Acts is not, as your Lordship is aware, so much to confine lunatics, as to restore to a healthy state of mind such of them as are curable, and to afford comfort and protection to the rest. Moreover, the difficulty of ascertaining whether one who is insane be dangerous or not is exceedingly great, and in some cases can only be determined after minute observation for a considerable time.

“It is of vital importance that no mistake or misconception should exist, and that every medical man who may be applied to for advice on the subject of lunacy, and every relative and friend of any lunatic, as well as every magistrate and parish officer (each of whom may be called upon to act in cases of this sort), should know and be well assured that, according to law, any person of unsound mind, whether he be pronounced dangerous or not, may legally and properly be placed in a county asylum, lunatic hospital, or licensed house, on the authority of the preliminary order and certificates prescribed by the Acts.

“Upon the whole, it appears that the power to restrain and confine a lunatic is limited at common law to cases in which it would be dangerous, either as regards others or himself, for the lunatic to be at large; but that the power to place and detain a lunatic in a registered hospital or licensed or other house, under an order and medical certificates duly made and obtained in accordance with the Lunacy Acts, is not so limited.”

The terms of the Lunacy Act, 1890, are as follows:

“Subject to the exceptions in this Act mentioned a person shall not be received or detained as a lunatic, as a single patient, unless under a reception order by a judicial authority.” “Every person who, except under the provisions of the Act, receives or detains a lunatic or an alleged lunatic in an institution for lunatics, or for payment takes charge of, receives to board or lodge, or detains a lunatic or alleged lunatic in an unlicensed house, shall be guilty of a misdemeanour, and in the latter case shall also be liable to a penalty not exceeding fifty pounds.” “Except under the provisions of this Act, it shall not be lawful for any person to receive or detain two or more lunatics in any house, unless the house is an institution for lunatics or a workhouse.” “Any person who receives or detains two or more lunatics in any house except as aforesaid shall be guilty of a misdemeanour.”

It is therefore unlawful to receive a lunatic or alleged lunatic except by reception order. Only one can be received into a private house, and a reception order is required. No medical man should receive a lunatic into residence without the necessary reception order. All the statutory regulations are demanded for a single case, and the private house is subject to visitation and inspection.

It is also important to remember that if any one receive a person not insane at the time, but who subsequently becomes insane, he renders himself liable to prosecution, unless he procure the necessary medical certificates and order (R. v. Wilkins).

Is a Lunatic a competent Witness?—Mr. Fitzjames Stephen maintains (Criminal Law) that madmen are competent witnesses in relation to testimony as in relation to crime. If they understand the nature of an oath, and the character of the proceedings in which they are engaged, they are competent witnesses whatever be the nature or degree of their mental disorder. An idiot shall not be allowed to give evidence (Co. Litt. 6 b; Gilb. Ev. 144); a lunatic during a lucid interval may do so (Id. Com. Dig. Testm. {A}). When a lunatic is tendered as a witness, it is for the judge to examine and ascertain whether he is of competent understanding to give evidence, and is aware of the nature and obligation of an oath; if satisfied that he is, the judge should allow him to be sworn and examined (R. v. Hill, 2 Den. 255; 20 L.J. [M.C.] 222).

The Civil Rights of Lunatics.—If an individual be suffering from such mental disease as to render him incompetent to manage his own affairs, the law steps in to protect him and his property from injury. But the power so used does not necessarily imply that he is deprived of his personal freedom, but merely such restraint as is necessary for his protection.

Many lunatics, under the protection of the Court, live in their own houses with large establishments. A person so protected by the law is said to be subject to an “interdiction.” In these cases a commission is usually granted by the Court of Chancery, and a writ known under the name of “de lunatico inquirendo” issued, after certain legal matters of detail are settled, and affidavits from medical men certifying to the insanity of the party have been filed.

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.

RESTRAINT OF HABITUAL DRUNKARDS

An habitual drunkard, as defined by law, is “a person who, not being amenable to any jurisdiction in lunacy, is notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor, at times dangerous to himself or herself, or to others, or incapable of managing himself or herself or his or her own affairs.”

Before placing such a person under restraint in a licensed retreat the person‘s consent must be obtained. The patient must make an application to a Justice of the Peace, and supported by a declaration from two persons stating that the applicant is an habitual drunkard within the meaning of the Act. If the justice be satisfied, he can make out an order for detention. The order is valid for any time mentioned in the application not exceeding two years. The patient can be detained, forcibly if necessary, and if escaped may be arrested and taken back.