Lords Sitting of 1 March 1886

MINUTES.
PUBLIC BILLS—First Reading— Drill Grounds*(24).
Second Reading — Lunacy Acts Amendment (12); Lunacy (13).
Report—Freshwater Fisheries (Eels)*(23).
Several Lords—Took the Oath.

LUNACY ACTS AMENDMENT BILL.
(The Lord Chancellor.)
LUNACY ACTS AMENDMENT BILL.

  (NO. 12.) SECOND READING.
  Order of the Day for the Second Reading read.
  THE LORD CHANCELLOR (Lord HERSCHELL), in moving that the Bill be now read a second time, said, that he should not detain their Lordships at any great length on this occasion, because the measure in its essential features was the same as that which had been laid before their Lordships last year by his noble and learned Predecessor in Office (Lord Halsbury). Inasmuch as such alterations which had been made in the measure of last year and which appeared in the present Bill had been made by his Predecessor, he could claim no merit whatever in introducing this measure except that of having taken up the work which had been done by that noble and learned Lord. It was impossible to exaggerate the importance of the subject with which this Bill proposed to deal, and few would deny the necessity that existed for fresh legislation with regard to it, because the conviction was increasing in the public mind year by year that under the existing law it was far too easy to incarcerate as a lunatic any of Her Majesty's subjects and that the
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  safeguards against improper incarceration were far too few. And when they reflected upon the wretched condition of those who were improperly incarcerated and upon their terrible sense of impotence to contend against the wrong that was being done that must be felt, and upon the misery in which a man must live who being in possession of his senses was condemned to dwell among those of unsound mind, they would feel that no efforts should be spared on the part of the Legislature to put an end to a law under which such a state of things was possible. It was a peculiar satisfaction to him to have the honour of introducing this measure, inasmuch as he had been a Member of the Select Committee of the House of Commons upon whose Report this Bill was founded. Ever since he had sat upon that Committee he had never ceased to take a deep interest in this subject. Under the present law it was possible for an individual totally unconnected with the alleged lunatic, by ties of blood or otherwise, with the assistance of two medical men to procure the incarceration of an individual for an indefinite period under the pretence that he was insane. He must, however, say that he did not believe that this power had been very greatly abused. It was only just and right that he should say so, and it was, in the highest degree, to the credit, the honour, and the intelligence of the great Medical Profession to whom such large powers had been intrusted, and it was also to the credit of the Commissioners of Lunacy, who had the control and superintendence of the working of the Lunacy Acts, that the abuses had not been greater. On the other hand, it must be admitted that the safeguards against improper incarceration were not all that could be desired. It was therefore proposed by this measure that a judicial investigation should be as a general rule an essential preliminary to the incarceration of any individual as an alleged lunatic. It was provided that an inquiry into the state of mind of the alleged lunatic should be made by either a County Court Judge, a Stipendiary Magistrate, or a Justice of the Peace specially chosen by the Court of Quarter Sessions for the duty. It was not intended that this investigation should be a perfunctory kind of thing, and therefore it was not permitted to all Justices

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  to undertake it. The desire had been to mark the importance of the investigation. Again, it was to be provided that the investigation should only take place upon petition, and that the petition should be presented by a relative of the alleged lunatic, or if by any other person some explanation should be given by him as to the reasons which led him to take that step. The judicial inquiry was made a condition to the incarceration; and every precaution had been taken to make that inquiry as private as possible compatible with the serious character of the matter. Provision had also been made for dispensing temporarily with the inquiry in cases of extreme urgency, because their Lordships were aware that in cases of urgency it was impossible to wait for an inquiry, and that it was for the interest of the lunatic himself and of his relatives that he should be placed in confinement without delay, because in many cases the only chance of cure was to be secured by immediate treatment. In such cases of urgency it was suggested that the lunatic might, upon the certificate of a medical man, be detained in an asylum for a period of seven days without investigation. It was, however, provided that where a person was so confined without a preliminary inquiry, an investigation into his state of mind should be held within seven days of his being so incarcerated, and that in the event of no petition being presented by his relatives within that period the alleged lunatic should be at once discharged. He thought that this provision would effectually guard against the power of immediate incarceration in urgent cases being abused. Provision was also made for a fresh investigation into the state of mind of each individual lunatic at the end of every three years, and unless the report showed that further detention was necessary the person detained should be released. It was also proposed that all letters written by lunatics to officials connected with the administration of the Lunacy Laws were to be forwarded by the superintendent of the asylum to the persons to whom they were addressed without having them opened. It was obvious that the object of such a provision was to enable every person under incarceration to state his grievances. An alteration was made with regard to the law relating to pauper
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  lunatics, who were not to be confined as hitherto upon the certificate of a clergyman or overseer; and it was also provided that no person not actually a pauper should be sent to a pauper lunatic asylum. This provision had been found necessary because it had been discovered that many persons not actually paupers had been sent to pauper lunatic asylums. These were the main safeguards which had been provided against persons being improperly incarcerated as lunatics in the first instance. But it was equally necessary that precautions should be taken against persons who had recovered their reason being detained in confinement. Perhaps the danger was greater that such persons should be wrongly detained than that they should be improperly incarcerated in the first instance. He could give an illustration drawn from the evidence taken before the Select Committee to which he had referred as exhibiting what he meant. It was that the public officials who visited those asylums to see that nobody was improperly detained there must be to a great extent dependent on the statements made to them by the medical man whoso asylum was visited. One of the appointed Visitors he remembered told this story:—There was a patient confined in an asylum whom he visited on several occasions, and as far as possible he satisfied himself that the patient was completely restored to sanity. He expressed that opinion more than once to the keeper of the asylum; but he replied— "Yes, it is very well for you to think so, as you only see him on your visits; but if you heard the language he uses at night when he thinks he is not watched you would see that his mania exists—a homicidal mania with relation to his wife." What was the Visitor to do under those circumstances? He did not take on himself the responsibility in the face of such a statement of ordering the patient's discharge. What would have been his position if the patient had returned home and had made an attack on his wife's life? It was impossible for him, having no evidence, to prove that the statement made to him was not true. He, however, induced the friends of the patient to remove him to another asylum, and he asked the medical man of that asylum to have him watched at night without the patient knowing it,

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  to see whether his language and his mania continued. That was done; it was found that no such language was used, and an order was made for the patient's discharge. That, as the witness told the Committee, occurred some years before, and the result was highly satisfactory. That would servo to show how impossible it was, whatever inspection they might have, to avoid relying to a considerable extent on the statements of the medical man whose asylum it was. He did not mean to suggest that even in the case to which he had alluded it necessarily followed that the superintendent was disposed to keep the patient in confinement knowing him to be sane. He might have relied, on the statements made to him by the attendants who had the care of the patient during the night. The truth was that, however they might fence matters round, they could not be without those dangers if they permitted places of confinement to exist where persons had an interest in detaining the patients there. He knew it was said that they had sufficient safeguard in the fact that the asylum from which patients were oftenest discharged cured would obtain the best reputation, and patients would be sent to them. In regard to the cure of certain diseases, that would no doubt prove true in the long run. But he was afraid there were many cases where the possible recurrence of an attack might make people not always eager to send patients to an institution where they would most rapidly recover; and he did not think they had the same security in the case of lunacy as in regard to other maladies. The question arose, What were they to do in respect to licensed houses? One proposal, a most sweeping one, would, of course, be to put an end to them at once; but it would, he thought, be impossible and unwise to adopt it. In the first place, they would be cutting up existing asylums with which the public were contented without providing adequate substitutes, and the public mind would hardly be prepared for such a step. He knew that during the last few years there was not the same prejudice in the public mind against publicly managed institutions as there used to be; but he still thought the public were not prepared to put an end to all private asylums. And, then, if that was done, they would be face to face with the
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  question of compensation. He did not think their Lordships would be prepared, though it might be for the public good, to put an end at once by a compulsory Act to undertakings that had been carried on for many years for the purpose of earning a livelihood without compensation. Then, would it be expedient to put an end to them at a fixed date? Again, whatever date they fixed, say 10 years, which some thought desirable, the same question of compensation would arise, because they would be affecting vested interests. Therefore the Bill provided that no new licence should be granted to any person to keep a licensed house. It interfered with no existing licence, but it allowed no new person to obtain a licence; and it also allowed no increase in the number that could be kept under any existing licence. Therefore they would have a gradual and natural cessation of licensed houses, and they would have an interval of time in which to substitute by authority the other class of asylums contemplated by the Bill. He was happy to think that proposal had substantially the approval of that very high authority on that subject, the late Lord Shaftesbury. Those were the main provisions of the measure, and if they were passed into law they would provide greater safeguards than those which now existed, both against improper detention in the first instance, and also against unduly-prolonged detention in asylums. He believed that if their Lordships carried out the reforms suggested by that Bill they would have taken a considerable step towards correcting abuses which, to some extent, existed under the present system, and would have done something to put the law on that most delicate and difficult subject on a more satisfactory footing than it was at present.
  Moved, "That the Bill be now read 2a." —(The Lord Chancellor.)
  THE EARL OF SELBORNEobserved, that the noble and learned Lord on the Woolsack had very clearly explained the provisions of a Bill that was substantially the same as the one which he had himself the honour of introducing last year, and which made considerable progress, but was eventually interrupted by political events to which he need not allude. He cordially hoped that the Bill would not only pass their Lordships' House

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  without any material alteration of its main provisions, but would be sent down to the House of Commons in time to have a chance of being passed there also. This important matter had long waited for legislation. It had been very carefully considered both by a Committee of the House of Commons some time ago and by their Lordships last year, and also by the Lunacy Commissioners and by the portion of the general public who had given attention to it. It was a most difficult question undoubtedly; but he said with great confidence that the clauses of the present Bill would go a long way to do that which was possible—for, of course, there was much that was not possible—for the correction of whatever abuses did exist under the present system, to allay the reasonable apprehensions of the public mind, and to do that which was sufficient to protect personal liberty, while at the same time securing that the necessary care was taken of the unfortunate class of persons concerned. His noble and learned Friend had stated that he had introduced some alterations into the Bill of last year, to strengthen its provisions in regard to the gradual substitution of public for private asylums. He himself had been sensible of the importance of attaining that object by gradual and prudent means as soon as it could be done, and, therefore, he was very far indeed from being unfavourably disposed towards those alterations. If he himself had not seen his way to go quite so far, it was more, perhaps, because the great question of compensation, with which their Lordships could not deal, stood in the way, than from a want of desire to accomplish that end. He would only express his hope that their Lordships would give to his noble and learned Friend the same kind and liberal support which they had given to himself last year.
  LORD COLERIDGEsaid, that, having considered this subject with great care, there were three points to which he desired to call the attention of their Lordships. Two of those points were noticed in the Bill; but he ventured to suggest to his noble and learned Friend that something more was to be desired, and the other point did not appear to be noticed. The first point was that to which his noble and learned Friend had just referred—namely, the extinction by degrees of all private asylums. He had
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  been of opinion since he had gained any experience in this matter that it was impossible to effect a real and satisfactory change in the Lunacy Law as long as it remained possible—human nature being what it was—for those persons who kept asylums to have an interest in retaining patients who were placed in their charge. He regretted to say that, both as a counsel at the Bar and since he had had the honour of a seat on the Bench, he had seen cases in which it was manifest that persons perfectly unfit to be detained in a lunatic asylum had been detained by the interest and by the representations, certainly coloured by that interest, of the keepers of the asylums where the patients happened to be incarcerated. He had stated before, and he took the liberty now of repeating the statement—which was, of course, not of universal application by any means—that, for some reason or other, to be the keeper of an asylum was not a pursuit which commended itself to the highest minds in the Medical Profession. He believed the greatest men among the Medical Profession would concur with him in saying that, as a rule, the best men among them did not take to this pursuit. He thought, therefore, no one with any experience at all could doubt, regard being had to human nature, that to give a medical man an interest in retaining a patient was to subject his moral nature to a strain which few could bear. He was not much moved by the answers to evidence of misconduct in this respect. They all knew that in the case of a person placed in any of those asylums the very last thing which such a person would do was to mention the fact of his incarceration. Although the speedy cure of the patient was the surest advertisement to the skill of the practitioner, and to impelling other persons to seek similar relief, yet that state of things did not apply in the case of lunatic asylums, because people who had been detained in private lunatic asylums forgot the fact as soon as they could, concealed it as long as possible, and mentioned it to as few persons as they could. The fact that there were speedy cures was not of direct personal advantage to the medical man who effected them as it was in the ordinary run of cases. He trusted, therefore, that so far as this Bill went something would be done to prevent the multipli-

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  cation of those asylums. When it was said that no further licences were to be granted to these houses, he hoped it was intended to provide that no further licences would be granted to any fresh persons, because it was obvious that the asylums might be perpetuated in other hands. In reference to the second point, he was glad to see that there were alterations proposed in the Bill regarding the present state of the law as to the examination of patients. He remembered a case in which the late Lord Chancellor was counsel, and he himself was the Judge. Undoubtedly the person who had been the subject of the incarceration was mad, and was most properly placed in confinement, and yet, owing to the manner in which he had been dealt with and the process used towards him being so outrageous, it was with the greatest difficulty that the jury were persuaded to do justice in this particular case from indignation at the state of the law. He thought, therefore, that some more stringent provisions than even those of his noble and learned Friend might with advantage be introduced in the Bill. Especially was this the case with respect to the examination of the lunatic when it was conducted by the magistrates. It should always be conducted with the assistance of a medical man, and after notice to the lunatic himself that he was to be subject to such an examination, in order that he might be given an opportunity of taking part in the proceedings, and of explaining, if he could do so, the circumstances on which his alleged lunacy was founded. He had known of cases where persons had been examined without the slightest idea on their part that they were being examined, and. without the slightest expectation on their part that their imprisonment in an asylum was pending. He thought, therefore, that when the Bill was discussed in Committee it might be amended in some respects in this direction. So far as he could see, another useful provision was not to be found in the Bill. According to the present state of the law, the person who put the law in force against a lunatic, however bonâ fide he might act, was not protected. He could not help thinking that this state of the law, in many instances, caused great hardship, the person so acting, if it was found that he was mistaken, being oftentimes subject
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  to actions for heavy damages. He submitted to their Lordships that some provision protecting the person who acted in a bonâ fide manner should be inserted in the measure.
  THE EARL OF MILLTOWNsaid, he must express his satisfaction at hearing the noble and learned Lord on the Woolsack speak so strongly against licensed private asylums. He would have heard with greater pleasure the statement that the noble and learned Lord had seen his way to at once suppress those institutions. He was willing to admit that the reasons adduced by the noble and learned Lord for adopting a moderate course were strong, although he was of opinion that the financial difficulty might be met by issuing bonds or by some analogous measure. If licensed houses were to be continued, those who kept them ought to be proper and qualified persons. As a matter of fact, most improper persons were allowed to keep them. Some were kept by discharged coachmen and persons of that class, who had no medical knowledge whatever. Many houses were kept purely in the way of business speculation, and that in itself was very undesirable. Many complaints were made that friends and solicitors could not obtain access to patients. There might be good reasons why a patient should not be allowed to see the order for his incarceration, but it ought not to be impossible, as it was often found to be, for friends to see the order, so that they might know the grounds on which it had been made. Brutality was often practised, and yet neither the police nor the public could do anything, as the order of incarceration was an answer to all interference. It ought to be compulsory on the Commissioners to see a patient within a month of his committal. Thirty per cent of the acute cases were either cured or proved fatal within three months; and if a patient might be left three months without a visit, it was obvious that many patients might die without ever having been seen by a Commissioner. A penalty for malfeasance ought to be recoverable either by the patient on his discharge, or by his friends. In this respect the Bill left far too much to the Commissioners. There were too few Commissioners for the work to be done. When six were appointed the number of lunatics was one-fourth of what it was now, and

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  the expenditure was £200,000 compared with £2,000,000 now. If there were not too many then there must be too few now. The houses in the Metropolis were directly under their care; and these were supposed to receive four visits a-year. The Commissioners had to pay their visits in couples, a medical and a legal Commissioner going together; and it was obviously impossible that three couples of Commissioners could do their duty by 8,000 patients in the Metropolitan district and 70,000 more outside that district. There were other points and deficiencies which would call for consideration in Committee.
  EARL BEAUCHAMPsaid, that the clauses which gave the Secretary of State power on the report of the Lunacy Commissioners to require the Local Authorities to provide accommodation for lunatics in the public asylums where that accommodation was stated to be necessary required careful attention on the part of their Lordships. He was not aware that there had been any hesitation on the part of the Local Authorities in providing the necessary accommodation, or in fulfilling the obligations laid on them by the law, and it was not, in his opinion, desirable to override their jurisdiction. He should object very much to the Secretary of State or the Commissioners being empowered to place heavy burdens upon the ratepayers in this matter.
  LORD BRAMWELLremarked, that there were many minute regulations in the Bill now before their Lordships and in the Bill which would follow it. He did not say that they were not necessary; but he recommended that they should be expressed, if possible, in the form of rules under some authority, so that if any alteration was required in them it could be carried out with making application to Parliament. Another matter—the law as it would stand under the next Bill on the Paper—the Lunacy Bill—would enable the Secretary of State to remove any person certified to be a lunatic from prison. The consequence would be that although a lunatic might be committed for trial he could not be tried, notwithstanding the fact that he might be perfectly innocent of the offence charged against him. On the other hand, he might be guilty, although a lunatic. The Secretary of State was not bound to
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  remove a lunatic in a case where a certificate of lunacy had been given for imprisonment. The Statute said that he might order the removal. In his opinion, the Secretary of State ought not to have the power, except when a person was in such a condition that he was not only a lunatic, but also unfit to plead.
  LORD EGERTONsaid, he wished to make some remarks on the clauses relating to idiots and imbeciles. He thought that the clauses on that subject would effect a very great improvement upon the existing law, but suggested that it would be greatly to the interest of idiots and imbecile persons, and also to their relatives, if the Lord Chancellor would take out of the Bill the clauses relating to those classes and embody them in a separate measure. Many children who were confined in idiot asylums were now educated and reclaimed to such an extent as to be able to follow some trade, and no longer be a burden on their families, and it placed a certain stigma upon them to class them with lunatics under that Bill.
  LORD ESHER, said, he had heard the term "incarceration" used in connection with this subject. It was a word which seemed to suggest an idea of offence or disgrace. It seemed to him that such a term depended upon an error which might give colour to a Bill of this kind which it ought not to have. It would be a good thing when everybody was of opinion that a disease of the mind was no disgrace to the person who was suffering or to any person belonging to him. Next, it was not every person of diseased mind who ought to be placed under control. If there was disease which did not affect the safety of the person diseased physically or as to his property, or the safety of others, he ought not to be placed under restraint. In the Bill itself there was no definition of the person who ought to be put under control, although the form of the medical certificate showed that the medical practitioner must certify more than mere disease of mind. It was said in the Bill that it was a person who was a lunatic. But that was not a definition, for people might have very different opinions as to who might be a lunatic, or to what extent in particular oases the disease might

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  go. It was not, as he had said, everyone who had a diseased mind or might be a lunatic in one sense who was a proper person to be taken in charge and put under restraint, and it would be for the general safety that that view should be expressed in the Bill. Then there were other precautions which should be taken. A magistrate not possessed of sufficient weight or experience placed himself too much under the influence of the medical men; and it was somewhat dangerous that any medical man, however young or inexperienced, should be allowed to sign a certificate. Then they must deal with the case of a person not only before but after he had been placed under control. It was too much to say that after a person had been put under restraint there need be no fresh inquiry for three years. Inquiry should be much more frequent. Lastly, it was evident, in view of recent litigation, that unless they provided very strong safeguards for the protection of relatives or friends, who might have taken the original steps, and also for the protection of the medical men, who might have acted in the matter, both one and the other might be placed in a very unsafe position, although they acted, in perfect good faith. There ought to be protection for them in such case.
  LORD ASHBOURNEsaid, that the most important and striking amendment proposed in the Bill of his noble and learned Friend was that which provided for the gradual extinction of private asylums. He had not heard from noble Lords in any part of the House any objection to that proposal, and he thought it was a wise one. It would not, in his opinion, be fair to the many honourable men engaged in that branch of the Medical Profession to introduce a drastic provision for the sudden extinction of their establishments. He believed that the provisions of the Bill by which provision was made for the care and retention of wealthy or solvent lunatics would require careful examination by their Lordships. The machinery by which the ratepayers were to be forced to provide houses for the reception of those now confined in private asylums, who were admittedly able to pay for themselves, would also need to be very closely regarded, He did not
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  agree with Lord Coleridge's suggestion that when lunatics were about to be examined by doctors, they should be warned of the purpose for which the examination was required. He fully agreed as to the necessity and justice of treating lunatics with every consideration and fair play; but he did not think that object would be achieved in a satisfactory way by putting the lunatic on his guard, by providing that, when examined by a medical man, he should be cautioned as to the purpose for which he was being examined; because everyone with the most superficial knowledge of lunacy was well aware of the cunning, which was so great and so far-reaching, in all persons thus afflicted that if, in all cases, an intimation was given of the object of the inquiry, the examination would be almost worthless. He regarded the Bill, on the whole, as a great advance on the existing state of the law, and trusted that it would soon pass into law. He would also suggest that some parts of the Bill should be applied to Ireland as well as England, for he did not believe in separate legislation where the objects to be legislated for were identical.
  LORD CLIFFORD OF CHUDLEIGHasked whether it was not desirable to make some provision for paying patients when the present system of private asylums should be done away with? He could see no reason why the cost of founding and maintaining asylums for those not of the pauper class should be thrown upon the counties. He believed that it would much more conduce to a proper treatment of lunatic patients if the numerous asylums which would spring up under this Bill should be so systematized that the different classes of mental diseases might be kept distinct. To treat certain cases properly separate asylums were indispensable; and children of tender years should not be confined with full-grown persons. This question would require serious consideration in Committee.
  THE LORD CHANCELLORsaid, that he was much indebted to their Lordships, not only for the manner in which the Bill had been received, but for the valuable suggestions that had been made. With regard to the remarks of the noble Lord who had last spoken, he might say that he anticipated that

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  the ultimate result of the Bill would be a saving instead of an additional burden to the ratepayers. At present the country sustained a substantial loss because there were many patients in county asylums just above the pauper class who could not afford the expense of private asylums. Many persons now confined at the public expense would have a certain sum provided by their friends for their maintenance in the new asylums, so as to give them additional comforts and remove them from the pauper class. He agreed with the observation of a noble and learned Lord that great mischief would be done if unnecessary difficulties were put in the way of placing lunatics under control. Owing to recent litigation, the fear of having actions brought against them deterred many people from taking steps to have their relatives confined, even where it was highly desirable for the latter's own sake that they should be placed under control. The consequence was that many of these persons remained at large until they came into collision with the police. That was very undesirable; and it was of importance that unnecessary obstacles should not be thrown in the way of placing undoubted lunatics under restraint. With regard to the observations of the noble Earl on the Front Benches in reference to the fresh inquiry into the state of mind of incarcerated lunatics every three months, he admitted that in the case of lunatics who had been confined in public asylums for long periods such, inquiries might be regarded as being too frequent, and he thought that it might be as well to amend the Bill in Committee by providing for more frequent inquiries being had during the earlier years of incarceration and less frequent as time went on. In conclusion, he might say that he was not irrevocably wedded to any particular provisions in the Bill, and that he was ready to give his best consideration to any proposals which would make the measure more valuable, and would conduce to the general welfare of their unfortunate fellow-creatures.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday the 15 th instant.

LUNACY BILL.—(No. 13.)
(The Lord Chancellor.)
LUNACY BILL.—(No. 13.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE LORD CHANCELLOR (Lord HERSCHELL), in moving that the Bill be now read a second time, said, that he need not trouble their Lordships further than to state that this was a mere measure of codification. As it was extremely desirable that all the provisions relating to lunatics should be embodied in one Act, he intended to propose that the Committee stage of this Bill should be delayed until after the Bill which their Lordships had just read a second time should have passed that House, so that the provisions of that measure should be incorporated in the present consolidation measure.
  Moved, "That the Bill be now read 2.a" —(The Lord Chancellor.)
  In answer to the Earl of MILLTOWN,
  THE LORD CHANCELLORsaid, that the Committee stage of the previous Bill would be fixed for that day fortnight.
  Motion agreed to; Bill read 2a accordingly.

  DRILL GROUNDS BILL [H.L.]
  A Bill for extending, with amendments, to grounds for drill and other military purposes, the enactments relating to the acquisition and regulation of rifle ranges—Was presented by The Lord Sandhurst; read 1a.(No. 24.)
  House adjourned at quarter past Six o'clock, till To-morrow, a quarter past Ten o'clock.