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Subject Area: Law
Topic: The American Revolution and Constitution

§ 45.: The confinement of the insane.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 45.

The confinement of the insane.—

This is one of the most important phases of the exercise of police power, and there is the utmost need of an accurate and exact limitation of the power of confinement. In the great majority of the cases of confinement for insanity, it is done at the request and upon the application of some loving friend or relative; the parent secures the confinement of his insane child, the husband that of his demented wife, and vice versa; and no doubt in comparatively few cases is there the slightest ground for the suspicion of oppression in the procurement of the confinement. But cases of the confinement of absolutely sane people, through the promptings of greed and avarice, or through hate and ignorance, do occur, even now, when public opinion is thoroughly aroused on the subject, and they occurred quite frequently in England, when private insane asylums were common.1

Although these cases of unjust confinement are probably infrequent, perhaps rare, still the idea of the forcible confinement in an insane asylum of a sane person is so horrible, and the natural fear is so great that the number of such cases is underestimated, because of the difficulty experienced in procuring accurate statistical knowledge (that fear being heightened by the well-known differences of opinion, among medical experts on insanity, wherever a case comes up in our courts for the adjudication upon the sanity or insanity of some one), one is inclined, without hesitation, to demand the rigorous observance of the legal limitations of power over the insane, and it becomes a matter of great moment, what constitutional limitations there are, which bear upon this question.1

In what relation does the insane person stand to the State? It must be that of guardian and ward. The State may authorize parents and relatives to confine and care for the insane person, but primarily the duty and right of confinement is in the State. “This relation is that of a ward, who is a stranger to his guardian, of a guardian who has no acquaintance with his ward.”2 In the consideration of the rights and duties incident to this relation it will be necessary, first, to consider the circumstances under which the confinement would be justifiable, and the grounds upon which forcible confinement can be sustained, and then determine what proceedings, preliminary to confinement, are required by the law to make the confinement lawful.

The duty of the State, in respect to its insane population, is not confined to a provision of the means of confinement, sufficient to protect the public against any violent manifestations of the disease. The duty of the State extends further, and includes the provision of all the means known to science for the successful treatment of the diseased mind. This aspect of the duty of the State is so clearly and unequivocally recognized by the authorities and public opinion in some of the States, that the statutes impose upon the State asylums the duty of receiving all voluntary patients for medical treatment, upon the payment of the proper reasonable fees, and retaining them as long as such patients desire to remain. In this respect the insane asylum bears the same relation to the public as the hospital does. As long as coercion is not employed, there would seem to be no limit to the power of the State to provide for the medical treatment of lunatics, except the legislative discretion and the fiscal resources of the State. But when the lunatic is subjected to involuntary restraint, then there are constitutional limitations to the State’s power of control.

If the lunatic is dangerous to the community, and his confinement is necessary as a means of protecting the public from his violence, one does not need to go farther for a reason sufficient to justify forcible restraint. The confinement of a violent lunatic is as defensible as the punishment of a criminal. The reason for both police regulations is the same, viz.: to insure the safety of the public.

But all lunatics are not dangerous. It is sometimes maintained by theorists that insanity is always dangerous to the public, even though it may be presently of a mild and apparently harmless character, because of the insane propensity for doing mischief, and the reasonable possibility of a change in the character of the disease. But the same might be said of every rational man in respect to the possibility of his committing a crime. Some one has said, all men are potential murderers. The confinement of one who is liable to outbursts of passion would be as justifiable as the confinement of a harmless idiot, whose dementia has never assumed a violent form, and is not likely to change in the future, simply for the reason that there is a bare possibility of his becoming dangerous.

But the State, in respect to the care of the insane, owes a duty to these unfortunate people, as well as to the public. The demented are as much under a natural disability as minors of tender age, and the State should see that the proper care is taken of them. The position has been already assumed and justified that the State may make provisions for the reception and cure of voluntary patients, suffering from any of the forms of dementia, and for the same reason that the proper authority may forcibly restrain one who is in the delirium of fever and subject him to medical treatment, the State has undoubtedly the right to provide for the involuntary confinement of the harmlessly insane, in order that the proper medical treatment may be given, and a cure effected. The benefit to the unfortunate is a sufficient justification for the involuntary confinement. He is not a rational being, and cannot judge for himself what his needs are. Judge Cooley says: “An insane person, without any adjudication,1 may also lawfully be restrained of his liberty, for his own benefit, either because it is necessary to protect him against a tendency to suicide or to stray away from those who would care for him, or because a proper medical treatment requires it.”2 If the possible cure of the patient be the only ground upon which a harmless lunatic could be confined, as soon as it has become clear that he is a hopeless case, for which there is no cure, he becomes entitled to his liberty. As already stated, the mere possibility of his becoming dangerous, through a change in the character of the disease, will not justify his further detention. But the confinement of a hopeless case of harmless lunacy may be continued, where the lunacy is so grave that the afflicted person is unable to support himself or to take ordinary care of himself, and where if discharged he will become a burden upon the public. That manifestly could only happen where the lunatic was a pauper. If he is possessed of means, and his friends and relatives are willing to take care of him the forcible confinement cannot be justified. These points are so clearly sustained by reason that authorities in support of them would not be necessary, if they could be found.1 The difficulties, in respect to the question of confinement of the insane, arise only when we reach the discussion of the preliminary proceedings, which the law requires to justify the forcible restraint of an insane person.

It is a constitutional provision of all the States, as well as of the United States, that “no man shall be deprived of his life, liberty, and property, except by due process of law.” There must be a judicial examination of the case, with a due observance of all the constitutional requirements in respect to trials; and the restraint of one’s liberty, in order to be lawful, must be in pursuance of a judgment of a court of competent jurisdiction, after one has had an opportunity to be heard in his own defense. This is the general rule. The imprisonment of a criminal, except as preliminary to the trial, can only be justified when it rests upon the judgment of the court. Since this constitutional provision is general and sweeping in its language, there can be no doubt of its application to the case of confinement of the insane, and we would, from a consideration of this constitutional guaranty, be forced to conclude that, except in the case of temporary confinement of the dangerously insane, no confinement of that class of people would be permissible, except when it is done in pursuance of a judgment of a court, after a full examination of the facts and after an opportunity has been given to the person charged with insanity to be heard in his own defense. Indeed, there is no escape from this conclusion. But the adjudications and State legislation do not seem to support this position altogether.

It is universally conceded that every man for his own protection may restrain the violence of a lunatic, and any one may, at least temporarily, place any lunatic under personal restraint, whose going at large is dangerous to others.1 But this restraint has been held by some authorities to be justifiable without adjudication, only while the danger continues imminent, or as preliminary to the institution of judicial proceedings by which a judgment for permanent confinement may be obtained.2 It is believed that no court would justify a permanent confinement of an insane person at the instance of a stranger without adjudication; and in almost all of the States the statutes provide for an adjudication of the question of insanity in respect to any supposed lunatic found going at large and without a home, and forbid the confinement of such person, except after judgment by the court.3 It may be assumed, therefore, that in those States the permanent confinement of an alleged insane person cannot be justified by proof of his insanity, not even of his dangerous propensities, where the confinement was at the instance of a stranger or an officer of the law, unless it be in pursuance of a judgment of a court of competent jurisdiction.

But where the confinement is on the request of relatives, whose natural love and affection would ordinarily be ample protection against injustice and wrong, there is a tendency to relax the constitutional protection, and hold that relatives may procure the lawful confinement of the insane, without a judicial hearing, provided there is actual insanity. The cases generally hold that extra-judicial confinement at the instance of relatives is lawful, where the lunatic is harmless, as well as in the case of dangerous lunacy, and it would appear that this is the prevailing opinion.1 If the objections to a judicial hearing were sustainable at all, it would seem that, in these cases of confinement on the request of relatives, there would be the least need of this constitutional protection, particularly as the person confined can always, by his own application, or through the application of any one who may be interested in him, have his case brought before a court for a judicial hearing, in answer to a writ of habeas corpus. And it may be that he needs no further protection. But there is still some room for the unlawful exercise of this power of control, prompted by cupidity or hate. This danger may be extremely limited, and the cases of intentional confinement of sane persons may be rare; still the fact that they have occurred, the difficulty in procuring a hearing before the court after confinement, as well as the explicit declaration of the constitution that no man’s liberty can be restrained, except by due process of law, urge us to oppose the prevailing opinion, and to require a judicial hearing to justify any case of confinement, except where an immediately threatening danger renders a temporary restraint of the insane person necessary, as a protection to the public or to himself.1

As a necessary corollary to the commitment of insane persons to asylums and the deprivation of their liberty, the courts have assumed the power, by the appointment of guardians or committees, to take charge of and to administer the estates of such persons. The power of the courts, to exercise this control of the property of a lunatic, cannot be seriously or successfully contested.1

Generally, the asylums are State institutions; but private asylums are still permitted under the supervision of the State authorities, and subject to the regulations, prescribed by law, as to the character and furnishings of the buildings, the provisions for the care and custody of the patients, and the inspection of the establishments by the Commissioners in Lunacy or other officials, who are charged with the supervision of the asylums and the care of the insane. Indeed, in one California case, the right to maintain a private asylum for the insane was recognized as protected by constitutional limitations from unreasonable and arbitrary regulations.1

[1]It has been held in California that the business of maintaining a private asylum, cannot be prohibited. Ex parte Whitwell, 98 Cal. 73. I do not consider this a very reliable precedent for the reasons set forth at length in post, §§ 120 et seq.

[1]For a careful, able, and elaborate discussion of the rights of the insane, and of the power of the State over them, see Judge Cooley’s opinion in the case of Vandeusen v. Newcomer, 40 Mich. 90.

[2]Preface to Harrison’s Legislation on Insanity.

[1]As to the necessity of adjudication in any case of confinement of the insane, see post, p. 128 et seq.

[2]Cooley on Torts, 179.

[1]The opinion of Judge Cooley in Van Deusen v. Newcomer, 40 Mich. 90, supports them in the main.

[1]Colby v. Jackson, 12 N. H. 526; Brookshaw v. Hopkins, Loff. 235; Williams v. Williams, 4 Thomp. & C. 251; Scott v. Wakem, 3 Fost. & Fin. 328; Lott v. Sweet, 33 Mich. 308.

[2]Colby v. Jackson, 12 N. H. 526; Matter of Oaks, 8 Law Reporter, 122; Com. v. Kirkbride, 3 Brewst. 586. See Ayers v. Russell, 50 Hun, 282; Porter v. Ritch, 70 Conn. 235.

[3]Harrison’s Legislation on Insanity; Look v. Dean, 108 Mass. 116 (11 Am. Rep. 323).

[1]See Hinchman v. Richie, 2 Law Reporter (n. s.), 180; Van Duesen v. Newcomer, 40 Mich. 90; Fletcher v. Fletcher, 1 El. & El. 420; Denny v. Tyler, 3 Allen, 225; Davis v. Merrill, 47 N. H. 208; Cooley on Torts, 179; Look v. Dean, 108 Mass. 116 (11 Am. Rep. 323); Ayers v. Russell, 50 Hun, 282. In many of the States, statutes provide for the intervention of a court in every case of permanent confinement, to the extent of requiring the physician’s certificate of insanity, before a permanent commitment may be made, and leave it to the discretion of the judge, whether the person, whose commitment is sought, shall be brought before him, or should receive notice of the pending inquiry into his sanity, notwithstanding the absence from the proceedings of the ordinary formalities which are generally held to be necessary to make a judicial proceeding “due process of law.” Thus, in the recent case of Chavannes v. Priestley, 80 Iowa, 316, it was held that it was not necessary to a lawful committal that an insane person should be present and be heard in his defense, where the commissioners of lunacy, before whom the inquiry was conducted, upon previous inquiry should ascertain that such notice and presence would be injurious to the insane person. The court say: “Now it is easy to imagine a case in which such presence could not with safety to the person be had, nor could such a hearing with safety be had in his presence, and such persons are those most likely to need the beneficial provisions of the law, and they must be deprived of them if there is a constitutional barrier to these proceedings in their absence, and without notice. * * * The law and the courts are so jealous of the rights of persons, both as to liberty and property, that they view with distrust any proceedings that may affect such rights in the absence of notice, and to our minds this same jealousy pervades the statute in question, and the ruling consideration in allowing these proceedings, in the absence of the party and without notice, is personal to him and designed for him. It is not a case in which he is adjudged at fault or in default, and for which there is a forfeiture of liberty or property, but only a method by which the public discharges its duty to a citizen. * * * The law contemplates the presence of a person whose insanity is sought to be established in all cases except where, upon inquiry, it is made to appear that such presence would probably be injurious to the person or attended with no advantage to him.”

In Fant v. Buchanan (Miss.), 17 So. 371, it was held that the provision of the Mississippi Code of ’92 for a jury of six in inquests of unacy, did not violate the constitutional requirement of “due process of law.”

[1]This has been the conclusion of the Minnesota courts in the recent cases of State v. Billings, 55 Minn. 474, and State ex rel. Kelly v. Kilbourne, 68 Minn. 320. In the case of State v. Billings, the court say: “It may be stated generally that due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity, when there, to prove any fact which, according to the constitution and the usages of the common law, would be a protection to him or to his property. People v. Board of Supervisors, 70 N. Y. 228. Due process of law requires an orderly proceeding adapted to the nature of the cases in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential. ‘Due process of law’ without these conditions cannot be conceived. Stewart v. Palmer, 74 N. Y. 183. It follows that any method of procedure which a legislature may, in the uncontrolled exercise of its power, see fit to enact, having for its purpose the deprivation of a person of his life, liberty, or property, is in no sense the process of law designated and imperatively required by the constitution. And while the State should take charge of such unfortunates as are dangerous to themselves and to others, not only for the safety of the public, but for their own amelioration, due regard must be had to the forms of law and to personal rights. To the person charged with being insane to a degree requiring the interposition of the authorities and the restraint provided for, there must be given notice of the proceeding, and also an opportunity to be heard in the tribunal which is to pass judgment upon his right to his personal liberty in the future. There must be a trial before judgment can be pronounced, and there can be no proper trial unless there is guaranteed the right to produce witnesses and to submit evidence. The question here is not whether the tribunal may proceed in due form of law, and with some regard to the rights of the person before it, but, rather, is the right to have it so proceed absolutely secured? Any statute having for its object the deprivation of the liberty of a person cannot be upheld unless this right is secured, for the object may be attained in defiance of the constitution, and without due process of law.

“Let us now turn to the statute in question. It must be observed at the outset that private, as well as public, hospitals are within its terms, and for this reason, if for no other, the rights of the citizen should be closely guarded. Section 17 requires that every person committed to custody as insane must be so committed in the manner thereafter prescribed. Section 19 provides that whenever the probate judge, or, in his absence, the court commissioner, shall receive information in writing (the form being given) that there is an insane person in his county needing care and treatment, he shall issue what is called a ‘commission in lunacy’ (the form thereof being prescribed) to two physicians, styled ‘examiners in lunacy.’ This section permits the filing of an information not even sworn to by anybody. That it has opened the door to wrong and injustice—to the making of very serious and unwarranted charges against others by wholly irresponsible and evil-minded persons—is evident, although the method of instituting the proceedings does not affect the validity of the act. The commission directs the two physicians designated, who, under section 18, must now possess certain qualifications, to ‘examine’ the alleged lunatic, and certify to the probate judge or court commissioner, within one day after their examination, the result thereof, with their recommendation as to the special action necessary to be taken. The form of this certificate and recommendation is laid down in section 20. This certificate must be duly sworn to or affirmed before the officer issuing the commission. Section 21. If (section 19) the examiners certify that the person examined is sane, the case shall be dismissed. If they disagree, the officer shall call other examiners, or take further testimony. If they certify the person to be insane, and a proper subject for commitment, for any of the reasons specified in section 17, it is made the duty of the officer to visit the alleged insane person, or to require him to be brought into court; ‘but he shall cause him to be fully informed of the proceedings being taken against him.’ If the officer deems it advisable, he may call other examiners, or take further testimony, and in all cases, ‘before issuing a warrant of commitment,’ the county attorney shall be informed, and it is made his duty to take such steps as are deemed necessary to protect the rights of such person. If satisfied that the person is insane, and that the reason for his commitment is sufficient, under the provisions of the act, the probate judge or the court commissioner approves the certificate of the examiners, and issues an order or warrant in duplicate, committing him to the custody of the superintendent of one of the State hospitals, or to the superintendent or keeper of any private hospital or institution for the insane, which, under the same law, has been duly licensed. This order or warrant may be executed by the sheriff or by a private individual, and through it the person named therein is placed in the custody of the superintendent or keeper to whom it may have been directed. There are some other provisions in respect to these commitments, but they have no bearing on the questions now before us, and we now reach a consideration of the controlling provisions of the statute. The commission issues to the examiners, and they are authorized and directed to ‘examine’ the alleged lunatic. Their examination is not made under oath. It may be formal or informal, as they choose, and the person under examination may not have the slightest idea that he is the subject of inquiry or investigation. The examination may be at any place where the subject can be found, or at a place convenient for the examiners. It may be public or private, and, judging from the questions found in the form to be answered by the examiners, it may consist simply in observing the alleged lunatic, and in making inquiries of him or of his acquaintances, or, for that matter, accepting common street gossip. * * * When this examination, of which the subject need not be informed, and in which he takes no part, is completed, the examiners are required to make a verified written report and recommendation, and on this the officer may commit without any other or further act, except that he must see the subject, either in or out of court, informing him fully of the proceedings, and must also notify the county attorney of what is going on. Not until after the examination, report, and recommendation, upon which the officer may commit, if he so chooses, need there be any notice whatsoever to the person charged with being a proper subject for the insane asylum, nor need the county attorney be advised of the proceeding. If personal rights are of any consequence, and if they need protection at any time, such notice should precede the examination, not follow it. But, aside from this serious defect in the law, it will be seen that there is no provision which assures to the accused a trial at any time, either before or after notice, under the forms of law; no provision which guaranties to him a judicial investigation and a determination as to his sanity. The officer before whom the inquiry is pending is nowhere required to conduct his examination with the least regard to the rights of the person charged with being insane,—his right to exercise his faculties without unwarranted restraint, and to follow any lawful avocation for the support of life. Nor is the officer obliged to hear a particle of testimony, although he is at liberty so to do. The accused or the county attorney might appear before him with an army of volunteer witnesses; but if their testimony was received or heard, or if there was the slightest approach to a trial, it would be through the grace of the officer, not as a matter of right to the person whose personal liberty is jeopardized by the proceeding. We are not speaking of what every honorable and humane officer would do when a case was before him, but of what the statute will permit an officer to do. Further examination of this enactment need not be made, for enough has been said to establish its invalidity, and to indicate what outrages might be perpetrated under it. The objection to such a proceeding as that authorized by this statute does not lie in the fact that the person named may be restrained of his liberty, but in allowing it to be done without first having a judicial investigation to ascertain whether the charges made against him are true; not in committing him to the hospital, but in doing it without first giving him an opportunity to be heard. We are compelled to the conclusion that the enactment of the sections referred to is unconstitutional, because they allow and sanction a denial of the protection of the law, and the deprivation of personal liberty without due process of law.”

[1]But see Rider v. Regan, 114 Cal. 667. In this case, the statute authorized, in the event of the hopeless insanity of husband or wife, the sane spouse, on the order of the probate court, after due notice to the nearest relative of the insane person, to sell or mortgage the homestead. The statute was declared to be constitutional, and not a taking of property without due process of law.

[1]Ex parte Whitwell, 98 Cal. 273.