Lords Sitting of 21 February 1887

MINUTES.
PUBLIC BILL— Committee—Lunacy Acts Amendment (7)
THE MAGISTRACY (IRELAND)—SIR THOMAS ESMONDE, M.P., HIGH SHERIFF OF THE COUNTY OF WATER- FORD.
  POSTPONEMENT OF QUESTION.
  LORD BRABOURNE,who had on the Paper a Notice "to call attention to the appointment of Sir Thomas Esmonde, M.P., as High Sheriff of County Waterford, and to ask for an explanation," said, it might be convenient to their Lordships to state that he had been asked by the Government to postpone the Question, of which he had given Notice, to a future evening. He therefore proposed to postpone it until Friday, the 4th of March, unless in the meantime the Government should make some statement which would relieve him from the necessity of calling attention to the subject, or of asking any Question at all.
  LUNACY ACTS AMENDMENT BILL.
  (The Lord Chancellor.)

  (NO. 7.) COMMITTEE.
  Order of the Day for the House to be put into Committee read.
  Moved, "That the House do now resolve itself into Committee on the said Bill."—(The Lord Chancellor.)
  LORD GRIMTHORPE,in moving, as an Amendment, that it be an Instruction to the Committee, that the numbering of the clauses throughout the Bill should be amended, so that every clause, whether

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  now numbered as a section or a subsection, might be numbered as a successive section of "substantive enactments," and that all references in the Bill be altered accordingly, said, that Lord Brougham, in 1850, passed a Bill, by which every section was to be deemed substantive in itself, and should be numbered by itself, for the purpose of easy reference in Courts of Law. But, afterwards, a more complicated provision was gradually introduced, and not only sections, but subsections and sub-subsections had been adopted, doing precisely the opposite of what was intended by that Act. This system was extremely inconvenient, and that seemed to him to be a fitting opportunity to instruct those who drew up Bills to prepare them in the way that was suggested by the Act of 1850.
  Amendment moved,
  "That the numbering of the clauses throughout the Bill be amended, so that every clause (whether now numbered as a section or a subsection) be numbered as successive sections of 'substantive enactments' (except those now indicated by letters prefixed, and which are parts of one sentence), and that all references in the Bill be altered accordingly."—(The Lord Grimthorpe.)
  THE EARL OF SELBORNEsaid, he objected to the Instruction, and hoped it would not be agreed to. The present system of dividing the main clauses of Bills into many subsections had been in use for a good many years—20 years at least. There might be something to be said both for and against it; but he was against interfering with it in the case of this Bill, which had been prepared by a very careful draftsman, and was as good a piece of work as it could be. If their Lordships were now to debate the Instruction of the noble and learned Lord, they would be called upon to discuss the general question how—all Bills were to be drawn. He trusted the House would at once go into Committee on the Bill.
  Amendment negatived.
  Motion agreed to.
  House in Committee accordingly.
  Clauses 1 and 2 severally agreed to.
  Clause 3 (Orders for reception of private patients to be made by county court judge, magistrate, or justice).
  LORD GRIMTHORPE,in moving, as an Amendment, to leave out Sub-sec-
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  tions 9, 10, and 11, for the purpose of substituting other words, said, the three subsections in question provided that the judge, magistrate, or justice to whom a petition had been presented should give the alleged lunatic notice thereof, unless such notice would be prejudicial to the lunatic or dangerous to the public, that the judge or magistrate may—and must if required by the alleged lunatic—have a personal interview with the alleged lunatic in the absence of the petitioner and the certifying practitioners, and that the petition should be considered within seven days. In lieu of these provisions he proposed to insert the following:—
  "Upon the presentation of the petition the judge, magistrate, or justice shall consider the evidence of lunacy appearing by the medical certificates, and whether it is necessary for him personally to see and examine the alleged lunatic; and, if he is satisfied that an order may properly be made forthwith, he may make the same accordingly; or, if not so satisfied, he shall appoint as early a time as practicable, not being more than seven days after the presentation of the petition, for the consideration thereof; and he may make such further or other inquiries of or concerning the alleged lunatic as he may think fit, and for that purpose may summon any person or persons to give evidence, and may take evidence on oath; and notice of the time and place appointed for such inquiry (unless personally given to the petitioner) shall be sent to him by post in a registered letter addressed to him at his address as given in the petition."
  It would be seen that he proposed to leave out the notice from the magistrate and the interview, as contained in the Bill at present; for, as he viewed them, their only use would be to facilitate the escape of alleged lunatics, and impose upon their friends the necessity of following them about this country, if they remained within it, as all the proceedings had to be taken within a few days under the Bill. On receipt of the notice, having, as they had, to do with all degrees of lunacy, a lunatic would probably get out of the way, perhaps out of the Kingdom, or he might leave the world altogether. There was one well-known case of a man of an eminent name who had been found a lunatic by inquisition, and who was now living abroad. He had received and would read to their Lordships a letter from an eminent medical practitioner stating that he had never known so many suicides of alleged lunatics as had occurred within the last two years; and the writer believed that

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  suicides were committed not so much, from the apprehension of the legal consequences of being declared lunatics as from the fear of publicity. The interview required by the Bill would virtually be nothing else than a trial of lunacy of the person. Most of these cases would have been curable had they been dealt within time—so, at least, said the letter he referred to. A great deal of expense and trouble would be caused under the Bill, which need not be incurred if the justice or judge were allowed to exercise his discretion, without listening to the demand of the lunatic whether he should see him or not.
  Amendment moved, in page 4, to leave out Subsections 9, 10, and 11.—(The Lord Grimthorpe.)
  THE EARL OF SELBORNEsaid, he held that Subsections 9 and 10 of the Bill were a total departure from the spirit of the Bills introduced by the noble and learned Lord (Lord Herschell) last year, and by himself (the Earl of Selborne) the year before. They had given careful consideration to the question; and to him it appeared that if the Subsections 9 and 10 stood, they would be prejudicial to the main object of the Lunacy Laws, which were for the benefit of those persons who required to be taken care of, and in which respect alone these laws were useful. The main object of such a law was the prompt placing under care and supervision of a patient really lunatic, before he could do harm to himself or anyone else. To proceed in the case of such a person as if he were accused of a crime, and to put him upon his defence, would be a departure from the whole principle of the law and practice of lunacy. It was assumed—the fact was, unhappily, too certain—that there were a number of persons who, unfortunately, required to be taken care of in their own interests and those of society, and that assumption required that they should be promptly dealt with, and without unnecessary delay. He entirely agreed that every reasonable security should be taken against any abuse of the law; but it should be remembered that many cases were curable; that if patients were treated promptly they could often soon be restored to their friends; but that in such cases all might, and often did, depend upon promptness of treatment. The clause
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  as it stood, in fact, would tend to defeat that object, and might compel the use of urgency orders in almost all cases; for it absolutely gave the lunatic the opportunity of taking vengeance upon those who sought to place him under restraint if he should so wish; or, if his tendency were suicidal, to do harm to himself; and, in all cases in which he was not so mad as to be unable to read and understand the notice, to remove himself out of the way, and so defeat it. He sincerely hoped their Lordships would agree to the Amendment.
  LORD HERSCHELLsaid, he so entirely sympathized with the object of his noble and learned Friend the Lord Chancellor in the desire to create every possible safeguard against putting under restraint people who ought not to be under restraint, that he assured him he approached the proposed alteration with every desire to support it if he could. But he could not support it. It was highly important that a sane person should not be put under restraint; but it was also important that restraint should be applied to those whom it was necessary and beneficial to restrain. They had to steer between those two dangers. The latter, to his mind, was a very real danger. There were, however, many cases which were undoubtedly curable, if the patient was at once removed from his surroundings and promptly treated. To impose delay in such cases might be to condemn to perpetual lunacy. It was essential that a safeguard should be created against such a danger. The very serving, too, of a notice upon a lunatic might, as had been pointed out, cause him to put an end to his life. Again, some lunatics, with an undoubtedly dangerous mania, might be clever enough to conceal their lunacy, when they were informed that a certain person was to see them. Were they justified in running such risks for the chance of a greater safeguard in requiring a magistrate to see the alleged lunatic? He doubted, moreover, whether a magistrate would be willing to undertake the duty of seeing every lunatic, when the documents he received might satisfy him of the lunacy of the man. A magistrate was to be bound to see the alleged lunatic, unless an emergency order had been issued, or it might be to the prejudice of the lunatic or

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  dangerous to the public. He did not know whether the magistrate was to regard himself as one of the public; but he supposed that he might. He was anxious to secure persons against abuse of the law of restraint; but he was afraid that the subsection might cause danger in another direction. Therefore, he was not easy as to running the risks pointed out by his noble and learned Friend, for those perils far outweighed the advantages of greater security which the present subsections provided.
  THE LORD CHANCELLOR (Lord HALSBURY)said, he could not help thinking that a good deal had been mixed up and introduced into the discussion which was not strictly associated with it. Their Lordships knew the history of the Bill, for all who had charge of Bills of this kind had been struck with the necessity there was for them to resist the desire of the Medical Profession to have the certifying of lunatics entirely in their own hands. Even the Lunacy Commissioners deprecated the interference of any judicial authority in these matters. His noble and learned Friends and himself had had occasion to see that they must resist that desire of medical men; and the question arose in what form judicial authority should be introduced with the least annoyance or danger to the lunatic? If the principle of the Bill—judicial intervention, as he took it—was admitted, he would undertake to alter the form of the clause so as to meet, as far as possible, the chief objections which had been raised. What he desired was that every person accused of lunacy should, if he wished, have the right to demand that he should be brought before a judicial tribunal. It would be extremely easy to mould the clause so as to provide that, within a certain time, say 24 or 48 hours after he had been taken care of under a medical certificate, a lunatic should have served upon him a notice enabling him, if he wished, to be brought before a magistrate. As he had said, if that principle were conceded, he was ready to mould the machinery of the clause so as to meet the views of noble and learned Lords; and he did not think it would operate prejudicially, either to the lunatic or to the public. He did not see how the principle could operate to the prejudice of the lunatic, or how an investigation before a magistrate could be more in-
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  jurious to the lunatic than the examination which medical men were supposed—he used the word deliberately—to make before signing a certificate for his removal; and he could not understand why a magistrate should not be as competent to decide the question with as judicial a mind as a medical man. The magistrate would be quite efficient, and would determine the question, not solely by his own view, or his power of detecting mental disease, but in the ordinary way in which he determined any matter which came before him in his judicial capacity upon evidence, and could do so with a judicial mind unpoisoned by information received from other persons. For himself, he thought an alleged lunatic should have an absolute right to demand, if he wished it, to be brought before a magistrate before his liberty was taken away from him.
  THE EARL OF SELBORNEsaid, he understood the present suggestion of the noble and learned Lord to be that when a person was actually under care as a lunatic, he should have such information given him personally as that, if he desired it, he might be brought before a justice or magistrate for examination. He (the Earl of Selborne) must guard himself from expressing an opinion at that moment one way or other as to that proposition, though he was quite ready to consider it when reduced to a definite shape; but he would point out that it was entirely different from that contained in the 9th subsection of the clause, and it was, he thought, a matter requiring further consideration. It was obvious that if the lunatic were already in care when he came before the magistrate, some of the objections to the subsections, as they now stood, would be removed.
  LORD HERSCHELLsaid, it also appeared to him that it was difficult to form an opinion on the suggested alteration of the clause without seeing its exact terms.
  THE LORD CHANCELLOR: In that case, my Lords, I am perfectly willing to postpone the clause in order that my proposition may be considered by noble and learned Lords.
  Amendment (by leave of the Committee) withdrawn.
  Clause postponed.
  Clause 4 (Urgency orders).
  LORD GRIMTHORPE,in moving, as an Amendment, to omit the words "one clear day," said, he did so because they had no legal definition of that term, and he would rather call it, as it stood, "one obscure day." He proposed instead to insert the words "not later than the following day."
  Amendment moved, in Subsection 10, page 8, line 10, to leave out ("within one clear ") and insert ("not later than the following.")—(The Lord Grimthorpe.)
  Amendment negatived.
  Clause agreed to, with verbal Amendments.
  Clause 5 (Protection to persons signing orders and certificates) agreed to.
  Clause 6 (Lunatics not under proper control or care and cruelly treated or neglected).
  On the Motion of The Lord MONKSWELL, the following
  Amendments made:—In Subsection 7, page 9, line 13, after ("shall") insert ("either himself visit and examine the alleged lunatic or"); and in line 15 leave out ("justice ") and insert ("he").
  Clause, as amended, agreed to.
  Clauses 7 to 32, inclusive, agreed to.
  Clause 33 (Maintenance for pauper lunatics taken charge of by relatives).
  On the Motion of The Lord MONKSWELL, the following
  Amendment made:—
  In subsection (5), page 25, add at the end of the subsection ("and the allowance made by the guardians or treasurer under this clause shall for all purposes of recoupment to such guardians or treasurer be deemed to be moneys paid for the maintenance of the lunatic in the asylum from which he has been removed ").
  Clause, as amended, agreed to.
  Clauses 34 to 39, inclusive, agreed to.
  On the Motion of The LORD CHANCELLOR, the following Amendments made:—After Clause 39 insert as new Clauses A. and B.—

  CLAUSE A.
  (Lord Chancellor may supersede inquisition and rescind or vary order for commitment of person.)
  "A. (1.) If in any case of a person who has been found lunatic by inquisition the Lord Chancellor or Judge in Lunacy, being satisfied on the report of the Commissioners or of one of the Lord Chancellor's Visitors in Lunacy, or on any other evidence that the lunatic is cured, or that he is capable of managing himself, and not dan-
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  gerous to himself or others, though incapable of managing his affairs, may, if he shall think it desirable that the ordinary proceedings for a supersedeas should not be insisted on, by order supersede the inquisition so far as the same finds that the lunatic is incapable of managing himself, and rescind or vary any order for the commitment of the person of the lunatic.
  "(2.) An order under this section may be made on such terms and conditions as the Lord Chancellor or Judge in Lunacy may think fit.
  "(3.) Notice of an order under this section shall be forthwith given to the committee of the lunatic and also to the person under whose care the lunatic is.

  CLAUSE B.
  (Order for custody of person of lunatic so found to determine unless continued.)
  "B. (1.) The medical attendant of every lunatic so found by inquisition shall, before the expiration of one, three, and six years respectively from the commencement of this Act, and before the expiration of every subsequent period of five years after the expiration of six years from the commencement of this Act, send to the Masters in Lunacy a report as to the mental and bodily condition of the patient, with a certificate under his hand certifying that the patient is still of unsound mind and a proper person to be detained under care and treatment.
  "(2.) If, before the expiration of any of the periods herein-before mentioned, such report and certificate is not sent to the Masters, the order for the commitment of the person of the lunatic as to whom such report and certificate is not sent shall determine at the expiration of such period; but nothing herein contained shall affect the commitment of the estate.
  "(3.) A Master in Lunacy may, by order under his hand, extend the time within which any report and certificate under this section is to be sent to the Masters, and if the time is so extended, the order for commitment of the person of the lunatic as to whom the time is so extended shall continue in force until the expiration of the extended time, but such extended time shall not exceed six calendar months.
  "(4.) Where any order for commitment of the person of a lunatic has determined under this section, the Masters in Lunacy shall forthwith give notice of such determination to the committee of the person of the lunatic and to the person under whose care the lunatic is."
  Clauses 40 and 41 severally agreed to.
  Clauses 42 (Restrictions on new licences).
  Amendment moved, to insert the following subsection after Subsection 3:—
  "If there be joint licensees who desire to carry on business apart from one another, and if, in the opinion of the commissioners or of the justices as the case may be, the establishment conducted by them jointly, and also any new establishment which any of them desires to conduct, answers the conditions herein-before required for granting renewed licenses, the commissioners or justices, as the case may be, may grant to each of such licensees renewed licenses for such number of patients (not exceeding in

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  the aggregate the number allowed by the joint license) as such joint licensees shall agree."—(The Lord Monkswell.)
  LORD HALSBURYsaid, he saw no objection to the insertion of the subsection.
  The EARL OF SELBORNEsaid, that he had turned this matter over in his mind since last year; and, on the understanding that the application of the subsection was not meant to be confined to cases in existence at the time of the passing of the Act, he was not disposed to make any objection to it.
  Amendment agreed to; words inserted.
  Clause, as amended, agreed to.
  Clauses 43 to 50, inclusive, agreed to.
  After Clause 50,
  On the Motion of The Lord MONKSWELL, the following New Clause was agreed to, and added to the Bill:—
  "When any officer is transferred from one county asylum to another county asylum in the same county, his service in all such asylums shall he counted for the purpose of computing his pension, superannuation allowance, or gratuity for length of service, as if all such asylums had constituted only one asylum."
  Remaining clauses agreed to.
  Schedules amended, and agreed to.
  House resumed, and to be again in Committee on Monday next.

LAW AND JUSTICE (IRELAND)— THE IRISH JURY LAWS.

  QUESTION.
  In reply to Earl CADOGAN,
  LORD FITZGERALDsaid, the question with regard to the Irish Jury Laws was very important, and its early discussion was most desirable. He had, however, received a letter from his noble and learned Friend (Lord Ashbourne), asking him (Lord Fitzgerald) to postpone his Motion on the subject; and, as it would be discourteous to the noble and learned Lord if he were not to comply with his request, he would postpone proceeding with the question from tomorrow till Monday or Tuesday next.
  House adjourned at Six o'clock, till Tomorrow, a quarter past 'Ten o'clock.