THE LESSONS OF THE RECENT LUNACY CASE. T HE result of
the trial of " Nunn v. Hemming " was anti- cipated long before it came, not only by the Jury and Judge,—indeed, the Judge, we think, interfered more than either precedent or prudence warranted in the conduct of the case,—but by all careful readers of the evidence. Of course, it was simply impossible to find Dr. Hemming guilty of the con- duct imputed to him, on the completely unsupported evidence of a man who was obviously labouring under other grave delu- sions,—who, in a confidential letter to his wife, written very soon after the treatment of which he complains, did not refer in any way to it, and who appears never to have made his complaint at all till three years after the supposed injury was said to have been inflicted. Of course, the jury were quite right in returning a verdict for the defendant, but not the less we regret that the Lord Chief Baron should have tried so often to stop the case, and to prevent Mr. Serjeant Parry from making a speech which, in our opinion, will be of infinitely more public service in drawing attention to the incur- able shortcomings of the present Lunacy Laws, than the mere evidence of special misconduct in a particular superintendent of an asylum, had any such been proved, could have resulted in. There is a certain excuse even for the apparent partisan- ship of the spectators in Court, whom the Lord Chief Baron so severely condemned. And it is this,—that under the pre- sent Lunacy system, as it is established in England, it is far too easy to deprive any one of unsound mind, even though the unsoundness be only temporary, and not dangerous to the community at large, of his liberty; and especially far too easy for those who either have, or at all events will be universally believed to have, a very strong interest in keeping him out of the • way, to secure his seclusion. Mr. Serjeant Parry very rightly called attention to the strong motives which the heads of profitable private Lunatic Asylums must have for concealing not merely any ill-treatment, but any evidence of con- straint, of which their patients may be inclined to complain. And this is what makes the public so suspicious in all cases of this kind. There was, as we have admitted, absolutely no evidence worth a moment's consideration against Dr. Hemming in the sense required by the plaintiff's action. But there was evidence that in this, and in other cases, the escape of patients had not been reported, as it ought to have been reported, to the Lunacy Commissioners; and such an omission is sure to breed suspicions, though these sus- picions may be, and in this case no doubt were, most unjust. Dr. Hemming said that in the present case Mr. Nunn's escape was not more than an attempt to escape, and was not, therefore, deserving of a special report. But this explanation does not appear to have applied to other cases into which Mr. Serjeant Parry was not allowed to go, and besides, it is obvious that the heads of Private Lunatic Asylums cannot be too scrupulous in inviting official inquiry into the circumstances of all such cases. They stand, unfortunately, in the very awkward position of deriving a large part of their income from the insanity of others ; and that being so, the world in general will always be prone to suspect, and will be right, at all events, in very jealously watching, the• possible tendency of such a condition of things to produce a state of mind less bent than it should be on promoting the recovery of the patients, and one still more averse from disclosing, even to the Lunacy Commissioners, the evidence of restlessness and discontent which persons deprived of their liberty are pretty sure, even without just cause, from time to time to manifest. It is most natural that the heads of Lunatic Asylums should feel exceedingly reluctant to make any fuss or scandal which they can manage to avoid concern- ing the uneasiness of their patients. But it is for that very reason, amongst others, that the Commissioners in Lunacy require information respecting the escape of patients ; and anything like a disposition to withhold it should be regarded as seriously endangering one of the best checks which the Com- missioners can exert over the management of such institutions.
The Government have promised, though we are not sure whether they intend to redeem their promise, to attempt to amend the present Lunacy laws in the present Session. The direction in which these laws require amendment has been discussed in several very well-informed articles contributed lately to the British Medical Journal, and we hope that these articles may be carefully studied by the Government, before the Bill they have promised to bring in, appears. Some of the points on which amendment of the law is plainly needful, are illustrated by this case of " Nunn v. Hemming," and none the less illustrated that the plaintiff failed to make out his com- plaints. The mistrust of the public, in reference to the manage- ment of these private asylums, is a mischief in itself,—and the mistrust of the public is evidently greatly aggravated by de- ficiencies in our Lunacy Law which admit of amendment. The tendency of such amendments clearly ought to be some- thing of this kind :—first, to obtain extra guarantees of careful and remedial treatment from all lunatic asylums whose man- agers gain by accessions to the number of their patients, and lose by discharging them. It would be well indeed if eventually the custody of lunatics could be confided entirely to those who lose nothing by the cure- of their patients, while they gain by it in the confidence of the public authorities on whose behalf they act. In the meantime, the tendency of legislation certainly should be to exact much more elaborate securities for the best remedial treatment from institutions whose managers would suffer in income by the loss of their patients, than from the officers of public institutions who are paid without reference to the means of those entrusted to their care. The conditions of the licence granted to these private institutions might well be made much more strict than they are, and their management should be subjected to a much stricter in- spection than the public asylums need.
But besides this special regulation of private lunatic asylums, there is an alteration of the law suggested by the writer in the British Medical Journal which would be a great security against abuse in all cases. He maintains that in no case should the power of permanently depriving a lunatic of liberty, be lodged either in the medical certifiers or the private friends, or the keepers of an asylum, or in all three acting together, —but should, as it is in Scotland, be lodged in public officers, like the Sheriff, who must act on his own responsibility, after hearing the medical and other evid- ence, and act with the same sense of responsibility which he would feel if he were issuing a warrant for a criminal arrest. And if this should be required in relation to all cases where a lunatic is to be deprived of liberty, further securities of this kind should certainly be required where the patient is to be committed to a private asylum, where it may be the interest of the proprietor rather to prolong than to shorten the duration of his malady. In such cases, the order for detention might well be strictly limited in regard to time, and only renewed on the evidence of a medical inspector satisfying the magistrate that the case had been carefully and properly treated in the interval, and that the renewed deten- tion was necessary for the patient's safety, or the safety of the public, or for both purposes. And for this end, as the British Medical Journal insists, it would be most desirable that the medical certificates on which a case for deten- tion is grounded, should be very different from the vague and empty certificates they now are ; that they should specify the specific nature of the mental malady, and the nature of the treatment which seemed to the medical author- ities giving the certificates to be, in their opinion, the best for the cure of the patient. It would be a great point gained, however, if a lunatic patient could only be deprived of liberty, —except provisionally, of course, for a very short period,—on the authority of a civil magistrate, bound to take the same class of precautions which he would take in authorising the arrest of a suspected criminal, and who would have the right to criticise and reject such vague and empty medical certifi- cates as are now habitually given in cases of this kind. This is part of the Lunacy Law of Scotland, and it seems a part which we in England should do very wisely indeed to adopt. As it is, the case of medical suspicion made out for the arrest of a supposed lunatic bears no analogy whatever to the case of legal suspicion which must be made out for the arrest
of a supposed criminal. And there would be this additional advantage in such a rule, that a magistrate who had to grant the warrant for detention would criticise with just jealousy the evidence of relatives who might be sup- posed to profit by the patient's detention. It is to be feared that medical men, instead of criticising this evidence with jealousy of this kind, are only too easy in accepting it. Assuredly they often assign reasons for their certificate which are not founded at all upon their own observation, but only on the observation of relatives, as it is reported to them by these relatives. And indeed, you can hardly expect from mere medical practitioners the disposition to question and scrutinise moral evidence of this kind, which you would expect from the representatives of law and justice. Clearly, a great part of the public sympathy with Mr. Serjeant Parry's client was due to the impression that certain relatives of the lunatic had derived pecuniary advantages from his incarceration, and that the medical men whom they had consulted, had not applied any proper test to the truth of their assertions. This impression, however mistaken it might have been in the present case, would be in great measure removed by throwing the responsibility for ordering the detention of a lunatic on a proper Civil Magistrate, who would criticise the medical statements made to him with a due sense of his obli- gation not to deprive an Englishman of liberty, except for weighty and sufficient reasons of public advantage. What we desire, then, in any amendment of the Lunacy Laws which the Government may propose is,—first, a very considerable increase of the checks on Private Lunatic Asylums ; and secondly, a transfer of the power to deprive the lunatic of his liberty,— when that is necessary,—from the officials of Lunatic Asylums, acting on the invitation of the medical attendants and relatives of the supposed lunatic, to a Civil Magistrate, who should feel bound to produce a sufficient justification for his sentence of detention, and to secure that it shall be carried out with due reference to the kind treatment and care of the lunatic whose liberty he takes away.
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