LAW AND LUNACY.

New Zealand Herald, Volume XXV, Issue 9144, 28 August 1888, Page 6

LAW AND LUNACY.

TO THE EDITOR. Sir—Mr. Justice Gillies' decision that Mr. Fenwick, though of unsound mind, is capable of managing himself and his affairs, and, therefore, is not a lunatic within the meaning of the law, is a distinction which would have saved this country much expense, and many persons much misery, if it had been recognised by committing magistrates. Our law defines a lunatic to be " any insane person, idiot, lunatic, or person of unsound mind, and incapable of managing himself or his affairs," etc. If a man iB found under circumstances denoting a derangement of mind, and a purpose of committing suicide, or some crime for which he would be liable to be indicted, he may be apprehended and sent to an asylum, if the magistrate be satisfied on the evidence of two doctors, and his own senses, that the man is a dangerous lunatic. The danger must be that of physical violence, not mere moral danger from the use of pen or tongue, though they might do infinitely more harm to one's mind, reputation, and fortune than physical violence could to life, limb, or property; and the "incapability" must mean more than the ordinary making of ducks and drakes of one's affairs. It must be incapability like that of infants, whose responsibility, and right to deal with property, is not recognised by law, until they have attained a certain age and standard of intelligence. Now this principle has not been sufficiently recognised, and hence our asylums are being filled with men, women, and children, some of whom are illegally imprisoned.

It is the easiest thing in the world for a jilted lover, jealous wife, irate creditor, or vindictive neighbour to get someone arrested for lunacy in New Zealand. Any too-offi-cious constable, or vindictive rival trader, or other person who persuades himself into the belief that So anci-so is mad, can set the law in motion. Once apprehended, God help him ! for, mad or not mad, the chances are that he will be locked up in the asylum before his friends can hear of his arrest; and when in the asylum, where no classification is possible, the rough usage of two or three violent maniacs will soon justify his detention as an asylum-made lunatic. Our methods of sending people to the asylums are a burning disgrace to a so-called civilised and Christian country. Mothers who find children tiresome, and children who find parents to be a burden, can run them into our asylums and get them kept at the public expense. Two young doctors, who know no more about insanity than some laymen, and are no more qualified to solve the problem of one's sanity in a hurried, sudden, and casual interview, than to perform a delicate operation on men's eyes, ears, or throat, pronounce a person mad in a first interview of five minutes, even while he is under the excitement of recent rough usage incidental to arrest and imprisonment in a felon's cell. If one is too conscientious to certify, and declares, "I can find no trace of insanity," another doctor is sent for, and the thing is done. He certifies with a dash of his pen. A case like that happened a few aays ago. I have frequently contended that sub-section 5 of section 25 of the Lunatics Act should always be enforced in all cases, and that the present unseemly haste should be discontinued. A woman recently left her home in the morning, was arrested, examined, and locked up in the Asylum before her husband could ride in from Ellerslie to take charge of her. I know of women and children in the Asylum whom it is a monstrous shame to detain there, and were it not for Dr. Cremonini's ability as an administrator, and the praiseworthy kindness of the attendants, the poor souls would be infinitely worse off than they are. Many cases suitable only for a workhouse are overcrowding the Asylum, overtaxing the staff, and depriving legal lunatics of proper chances of recovery. Confinement in asylums now is mere imprisonment, and until we put our foot down to save medical superintendents from being inundated with the merely mentally feeble, they will not be able to practice that hospital-treatment of the insane which modern medical science demands.

One remedy is to practise the legal doctrine laid down by Mr. Justice Gillies and the Judges in England. Of the merits of Fenwick's case I will say nothing at present, but of the principle laid down. It is : That persons of unsound mind are not necessarily lunatics within the meaning of our law, and cannot be legally deprived of their liberty. That has been ignored in the past, and persons with mere "cranks" have been sent to our asylums. The Judge says " that is false imprisonment." When someone is made to smart for such false imprisonment, we shall have the law read and administered better. In England, lunatics who could fee counsel have shown that the law recognises this distinction, and punishes its infringement even though the defendants acted from no mercenary or unkind motives. Our lunacy law is nearly a transcript of the English law. When Miss Nottidge, who was admitted to be suffering from insane delusions, sued for damages for illegal detention in a madhouse, she was awarded them, although the jury expressed the opinion that the defendants had not acted from unworthy or mercenary motives. The Lord Chief Baron, supported in his reading of the law by counsel for the plaintiff, Mr. Cockburn, afterwards Lord Chief Justice, ruled that the defendants failed inasmuch as, although they proved her insane, they did not prove her incapable of managing her own affairs. In subsequent cases the same doctrine was laid down by the Judges of the Queen's Bench, and in the case of Miss Nottidge the following deliverance was made :— (I quote from " The Care of the Insane and their Legal Control," by Dr. Bucknill): — " The Lord Chief Baron said : Mr. Milne, was this lady in such a state of mind as to be dangerous to herself and others ? Mr. Milne : Not so far as I was aware of. Lord Chief Baron : If she were not so, then how was it that you kept her in this asylum for ten months? Mr. Milne : My Lord, it was no part of my duty to keep her there. I was only to liberate her if I saw good and sufficient reason for adopting that course. Lord Chief Baron : It is my opinion that you ought to liberate every person who is not dangerous to himself or others. If the notion has got abroad chat any person may be confined in a lunatic asylum or a madhouse who has any absurd or even mad opinion upon any religious subject, and is safe and harmless upon every other topic, I altogether and entirely differ with such an opinion, and I desire to impress that opinion with as much force as I can in the hearing of one of the Commissioners."—l am, &c., F. G. EwiwgtoNc