DIVORCE LAW

New Zealand Herald, Volume LXXIII, Issue 22515, 4 September 1936, Page 15

DIVORCE LAW

MENTAL PATIENT CASE

NOVEL POINT RAISED VOLUNTARY INMATE'S STATUS COURT RESERVES DECISION The legal question whether a person who voluntarily enters a mental hospital can bo said to be "confined" there, was at issue in divorce proceedings heard by Mr. Justice Callan in the Supreme Court yesterday. The petitioner was married to the respondent in December, 1920, at Auckland. Mr. A. A. Coates represented the petitioner, and Mr. V. R. Meredith appeared for the Solicitor-General as guardian ad litem. Mr. Coates said it was alleged by the petitioner that the respondent was a person of unsound mind, and had been detained as such for a period of seven years. The only point on which there was contention was whether or not respondent had been a person confined within the meaning of sub-section lOf of the Divorce and Matrimonial Causes Act, 1928. This sets out as a ground for divorce that the respondent is a person of unsound mind and unlikely to recover, and has been confined as such in an institution for seven years out of the' preceding ten. Mr. Coates said he would submit that a voluntary boarder was a person "confined" as of unsound mind within the meaning of the sub-section. Wife's Breakdown The petitioner said there was one child, and shortly after its birth his wife had a severe mental breakdown. She entered the Auckland Mental Hospital at Avondale in 1922, and was in and out of it for some years. The last time she entered it was on March 19. 1929. He visited her there, but she did not know him.

Tho medical superintendent of the Auckland Mental Hospital, Dr. H. M. Buchanan, gave particulars of respondent's admissions and discharges from the hospital from 1922 to March, 1929, when she was admitted as a voluntary boarder. Her degree of insanity was such that she could have been lawfully committed as a patient at any time since her last admission. Her condition had got steadily worse, and ho was sure there was no possibility of her recovery. He thought she could have been committed in March, 1929. His Honor: Was it in your opinion wrong to take her as a voluntary boarder P —No.

Witness added that the regulations for accepting voluntary boarders were much stricter now than they wero then. If respondent had applied for her discharge at any time he would not have allowed her to go. There was no difference in the treatment between patients and voluntary boarders. Expert Evidence In answer to Mr. Meredith, witness said that after her first admission respondent was apparently well for about six years. All the form of request for admission, dated March 19, 1929, was evidently in the woman's writing. She could have applied at any time to leave on giving seven days' notice, and unless a reception order had been made within those seven days she would have been free to leave. Witness did not take charge of the hospital until tho month after respondent's admission. She had remained as a voluntary boarder until she was committed on July 17 last on the application of her husband. This had been suggested to him in consequence of a circular from the head office asking that voluntary boarders who had been resident for a long time should be committed if their condition warranted it.

Witness said there were many voluntary hoarders whom ho could not commit. Mental disease generally tended to be a matter of growth, and if treated in time might be prevented. The voluntary boarder system was extensively used. Mr. Meredith: Which way do the majority go?— The majority get better. Basis of Petition Mr. Coates said it was clear from the evidence that the respondent had in fact been detained in the institution for a period of upwards of seven years, and that at any time within that period she was certifiable. Ihat was the main basis of the petition. The material point was the degree of mental unsoundness required by the subsection. . His Honor said that in the matter of mental unsoundness, which was a matter of degree, there was room for infinite difference of opinion, and in many cases the most eminent alienists could bo assembled on both sides. Parliament had decided to require, in addition to expert opinion, proof of the fact that the patient had actually been locked up as mentally unsound in a mental hospital. Mr. Coates said that the word detained" was used both for committed patients and for voluntary boarders. His Honor said he would assume that a voluntary boarder could be said to be confined, and he invited Mr. Coates to define the words "confined as such. Mr. Coates said they meant "confined as of unsound mind and unlikely to recover." He quoted from the Act to show that voluntary hoarders were subject to identically the same restraints as patients. By reason of the provisions of the Act, the respondent had been closely confined for the past seven years.

A Disputed Definition His Honor said ho agreed with all counsel's argument except his definition of the words "confined as such. Mr. Meredith said the requirements under the Act were that the respondent must be of unsound mind, must be unlikely to recover and must have been confined "as such" for seven years. The fallacy in his friend's argument was that he eliminated entirely the words "as such." If a person went in and out as a voluntary boarder and was finally committed, were all those periods to be counted in the seven years? His Honor said he regarded this morally as a perfectly clear case, but he had to be careful not to open the door to the possibility of very grave scandal. A husband might persuade his wife, who was nervously upset, to become a voluntary boarder, and then afterwards use that as a ground of divorce. Mr. Meredith said the Act indicated that a person who qualified for a reception order should not be taken as a voluntary boarder, showing that it was intended to keep the two classes distinct. Once a voluntary patient qualified to be received, the necessary reception order should be obtained for him.

Mr. Coates submitted that the Court must consider each case on its merits. His Honor said he would take time to consider his decision.