CHAPTER III

LEGISLATION AND METHODS OF ADMINISTRATION

The administration of the earlier hospitals for mental diseases was placed very wisely in the hands of local boards of directors, managers or trustees. These were made up of persons prominent in the community in which they lived, well known as having a keen interest in humanitarian movements, and fully deserving of the confidence reposed in them by the public. They received no compensation other than the satisfaction of having served in a worthy cause. The state hospital at Williamsburg, Virginia, the first of its kind in America, was controlled by a court of directors which was made up of some of the most prominent Virginians of colonial days. It included Thomas Nelson, Jr., a signer of the Declaration of Independence who served with distinction in the Revolutionary War, Peyton Randolph, the President of the first Continental Congress, and George Wythe, the preceptor in law of both Marshall and Jefferson, as well as a signer of the Declaration of Independence and professor of law at William and Mary College, together with various other distinguished citizens, some perhaps of less prominence, but all men of the highest standing in Virginia. The first "court" consisted of fifteen members. The second state institution, the Maryland Hospital, under the management of the city of Baltimore for some years, was eventually placed under the control of a board of visitors in 1828. Kentucky's first hospital was from the beginning in the charge of a board of ten commissioners. When the second Virginia institution was opened at Staunton, the form of organization adopted at Williamsburg was duplicated and a court of directors appointed. There were, however, thirteen instead of fifteen members. The state hospital at Columbia, South Carolina, was originally, and still is, under a board of regents. The Massachusetts hospitals, dating from the opening of Worcester in 1833, have always had trustees. The Vermont Asylum, later the Brattleboro Retreat, was also managed by a board of trustees, as was the New Hampshire State Hospital at Concord. The Georgia State Sanitarium, opened in the same year, adopted a similar form of control. The Utica State Hospital has been conducted from the first by a board of managers, a term which is generally used by the New York institutions. When the Trenton State Hospital was founded it was placed under a board of ten managers, more or less along the lines followed at Utica. The State Hospital at Raleigh, North Carolina, had a board of directors. For many years the earlier institutions for mental diseases were under no other form of control, the powers of the trustees being absolute. This is still the case in a few states. Usually, however, there is some additional form of supervision.

Boards of trustees, managers, directors, or some other local governing body, exist in the following states but without exclusive control:—Alabama, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Louisiana (administrators), Maine, Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New Mexico, New York, Pennsylvania, South Carolina (regents), Texas and Virginia.[23]

In the following states the hospitals have no local boards of any kind:—Arizona, Arkansas, Colorado, Florida, Illinois, Iowa, Kansas, Kentucky, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin and Wyoming.[24]

As the state hospitals increased in number and importance, steps were taken to coordinate their activities and for various obvious reasons they were soon grouped together in departments. In the states having a sufficient number of hospitals to warrant such a procedure, separate specialized administrative units were established under lunacy commissions, etc. In less populous communities where there were only a few hospitals there soon developed a tendency to associate them with the charitable, correctional and, in some instances, penal institutions. Seventeen states, as has been shown, now have only one hospital for mental diseases, eight have two and ten only three institutions. This led either to placing the hospitals under boards of charities and corrections or to the organization of new departments known as boards of control. The hospitals for mental diseases are under the supervision of boards of charities and corrections in the following states:—Colorado, Connecticut, Indiana, Louisiana, Maine, Nebraska, North Carolina, South Carolina, South Dakota and Virginia.[24]

Boards of control exist in Arkansas, California, Iowa, Kentucky, Minnesota, North Dakota, Oregon, Vermont, West Virginia and Wisconsin. California has, in addition to this, a board of charities and corrections and a commission in lunacy. Vermont has a director of state institutions. In New Hampshire the board of trustees of the state hospital constitutes a commission in lunacy. A number of states have special departments for the supervision of hospitals for mental diseases and in some instances for the control of all institutions. Delaware has a board of supervisors of state institutions. This is essentially a board of control. This is true of the board of commissioners of state institutions in Florida. Illinois has a department of public welfare, which places the control of the charitable, penal and corrective institutions, as well as the hospitals for mental diseases, largely in the hands of one man, a layman. Michigan and Pennsylvania also have departments of public welfare. Kansas has placed its hospitals under the control of a board of administration of state charitable institutions. Maryland has a lunacy commission and Missouri a board of managers. Montana and Nevada each have a board of commissioners for the insane. New Jersey has a state board of control of institutions and agencies, the direction of the state hospitals being delegated to a commissioner of charities and corrections. New York has the largest department in the country having exclusive state hospital functions. It is under the supervision of a hospital commission. Ohio has a board of administration which manages and governs all of the charitable, corrective and penal institutions of the state. This is, of course, a board of control pure and simple. Oklahoma has a commissioner of charities and corrections who is an elective officer, and has, in addition, a lunacy commission and a board of public affairs. Rhode Island has a penal and charitable commission of nine members. Utah has a board of insanity and Wyoming a board of charities and reform. Massachusetts has a department of mental diseases under the direction of a medical commissioner, with four unpaid associates. In addition to the hospitals for mental diseases the department has under its jurisdiction the institutions for the feebleminded and the epileptics.

The necessity of some form of central supervision or control, of state institutions in general and hospitals for mental diseases in particular, has long been a subject of serious consideration and discussion. The administration of hospitals, prisons, reformatories, etc., by a central board of control may be indicated in states where there are only a few institutions and the creation of highly specialized and expensive departments obviously would not be warranted. The question may very properly be raised as to the necessity of any supervision other than that by local boards of trustees in such communities. A study of methods of supervision made some years ago by the medical director of the National Committee for Mental Hygiene[25] shows that the board of control system leaves much to be desired. He has expressed himself on this subject in no uncertain terms, as is shown by the following:—"Under Boards of Control, politics influence the care of the sick to a degree unknown under different types of supervision and the scientific and humane aspects of the work undertaken are generally subordinated to doubtful administrative advantages. With hardly an exception, these Boards of Control have not endeavored to secure better commitment laws, to lead public sentiment so that higher standards of treatment will be demanded or to deal with the great problems of mental disease in any except their narrowest institutional aspects. There has been striking absence of evidences of any feeling of personal responsibility in these matters; indeed many members of these boards would doubtless unhesitatingly state that their duties do not involve such considerations. What the results would have been if efficient and fearless local boards of managers had been retained when these states created Boards of Control cannot be stated. It is an essential part of the policy which places the care of the insane under this form of administration that there shall be no "division of responsibility" and, seemingly, there is no place in such a scheme for bodies which are as much interested in the personal welfare of the wards of the State as they are in governmental "efficiency" and, which, moreover, are directly accountable to their neighbors—the friends and relatives of patients. It is interesting to compare some of the conditions mentioned with those existing in States in which the care of the insane is entrusted to Boards created for that special purpose. In these States,—California, Maryland, Massachusetts and New York,—it can be said truly that the care of the insane reaches its highest level."

The experience of the past has shown that the injection of politics into the administration of state institutions is almost invariably due to the over-centralization of power in state departments, the local boards of trustees or managers either being abolished or largely deprived of their authority. The greatest menace to the future welfare of the hospitals for mental diseases is, in the opinion of many, the unfortunate result of a popular and more or less legitimate demand for the reorganization of state governments, reducing their administrative activities to a few separate departments, each one under the entire charge of a director responsible only to the Governor. The argument for this procedure is that it does away with innumerable commissions, boards and departments working along independent lines without any reference to the desirability of coordinating the activities of the state as a whole and places the affairs of the commonwealth on an efficient, systematic and economical basis. There is no question as to the theoretical advisability of such methods. The difficulty is, that in putting into practical operation this unquestionably commendable undertaking, the humanitarian aspect of the charitable enterprises conducted by state governments for more than a century, is likely to be lost sight of. It is almost invariably urged that the directors of these various departments should be experienced business men of recognized ability and that in only such a way can the affairs of the state be put on a "businesslike basis." It must be confessed that this argument is one which appeals very strongly to the taxpayer, who naturally has not given the matter very careful thought. There are other important considerations, however, where the question of administering hospitals is involved. As Commissioner Kline[26] has said:—"If it be conceded that the care and treatment of the mentally sick is a highly specialized medical problem, requiring the services of medical experts, and that the institutions function primarily for the welfare of the patient, then the supervision and control of institutions should be in the hands of medical men especially trained for the purpose."

In some instances where the state governments have been reorganized and the proposed consolidation of departments effected, the administration of the state hospitals has come under the direction of a single individual without hospital or institution experience of any kind and without any special knowledge of medicine or psychiatry. There is no escaping the fact that the administration of a hospital is a medical problem. Nor is there any question as to the advisability of some central supervision and financial control of institutions. The hospital departments in our more populous states are, however, so extensive and so important that they cannot be merged with other interests without sacrificing to a considerable extent the welfare of the patients. It should be remembered, moreover, that the administration of hospitals for mental diseases is a specialty and a large one, not specifically related to the problems arising in the management of charitable institutions or prisons. The best results have been obtained where there is a division of responsibility between local boards of trustees or managers and a central body charged with the supervision, and a limited or complete financial control, of institutions for mental diseases only. The head of such a department should unquestionably be a medical man with psychiatric hospital experience. This policy has been responsible for the high standards maintained in the state hospitals of Massachusetts and New York.

It is, unfortunately, true that the care of mental diseases is not exclusively a function of the state or private hospitals. In thirteen states, county or municipal institutions are maintained and in twenty-five, persons suffering from mental diseases may legally be cared for in almshouses or poorhouses.

There is little uniformity in the laws of the various states relative to the hospital care of mental diseases, aside from the fact that almost without any exception they are designed to provide solely for the legal custody of the so-called "insane" and the protection of the public. "Insanity," as a matter of fact, is a purely legal and not a medical term, and may be said to relate to mental diseases only in so far as they come within the jurisdiction of the courts.

Statutory enactments relative to the forms of mental disease which render the individual subject to legal custody and detention in an institution are illustrated by the provisions of the Civil Code of Illinois. This defines an "insane" person as one "who by reason of unsoundness of mind is incapable of managing his own estate, or is dangerous to himself or others, if permitted to go at large, or in such condition of mind or body as to be a fit subject for care and treatment in a hospital or asylum for the insane." In Alabama a person is legally insane "if he has been found by a proper court deficient or defective mentally so that for his own or others' welfare his removal is required for restraint, care, and treatment." As a general rule, provision by law is made 1, for an application for commitment; 2, for a medical certificate of two or more properly qualified physicians showing the person to be insane and a proper subject for care and treatment in an institution, and 3, for the order of the Judge of a Court of Record for commitment to a state hospital. The necessity of some form of legal authorization for detention is a result of the fundamental principle in English procedure that no man, against his will, may be deprived of his liberty without due process of law. This right was recognized and perpetuated by the Magna Charta signed by King John in 1215 and is very definitely referred to in at least two different articles in the Constitution of the United States.

As a rule the application for commitment can be made only by certain persons definitely specified in the law,—parents, near relatives, the guardian or various public officials such as overseers of the poor. In Massachusetts any person may sign such a petition. In Florida a request must be jointly made by five reputable citizens. This would not appear to be a material point in law. Some courts require that a notice of the application be served upon the person whose commitment is requested. In New York a notice must be served at least one day prior to the hearing of the case unless the judge personally certifies that substituted service has been made upon some other person or that personal service was considered inadvisable for some adequate reason noted and has therefore been dispensed with. The Arizona law requires the judge to hold a hearing and have the alleged insane person before him for examination. In California a jury trial may be requested and a commitment made only on a verdict of insanity requiring a vote of at least three-fourths of the jurors. A trial by jury may be asked for in Colorado, Connecticut and many other states and must be granted. Trial by jury is necessary in all cases in Georgia. Provision is usually made for an appeal to some higher court. In many states hearings are mandatory, in others they are optional with the court. In Iowa each county has a board of three commissioners of insanity, one of whom must be a physician. They have full authority under the law to make commitments to institutions. Hearings are required in Kansas but inquests in lunacy may be either by jury or commission at the discretion of the court. In Kentucky inquests in lunacy must be held by the Circuit Court of a county. The hearings are always in the presence of a jury. In Louisiana two physicians must examine the patient in the presence of the court. If the physicians do not agree the judge himself decides the case. In Maine parents and guardians may send insane minors to an institution without a commitment. Other insane persons are subject to examination by the municipal officers of towns. In Mississippi the Chancery Courts have jurisdiction over writs of lunacy and an inquest may be made by jury. Nebraska has three commissioners in insanity in each county, appointed by the judge of the District Court. In the case of persons found insane they issue a warrant authorizing admission to a state hospital. Each county in New Jersey has a commissioner in lunacy, who has jurisdiction over the steps relating to admission to institutions. Commitments are made by the judge of a Court of Record. All orders for commitments in North Carolina must be made by the clerk of a Superior Court. No person who has moved into the state while insane is deemed a resident. North Dakota has a board of three commissioners of insanity in each county, the county judge being a member. The commissioners authorize hospitals to receive persons found to be insane. Appeal may be made to a commission of three persons to be appointed by the county judge. A jury trial is provided for, on demand, in Oklahoma. In cases of appeal the county judge must appoint a commission of three, one of whom is a physician, for the examination of the patient. Examination by a commission of three is required in Pennsylvania before commitment by a justice of a Court of Common Pleas or Quarter Sessions. South Dakota has a board of three commissioners of insanity in each county, the county judge being a member. An insane person may be received in a hospital in Vermont on the certificate of two physicians or by the order of a County or Supreme Court without a physician's certificate. Appeal may be made to the state board of control. In Virginia the committing judge and two physicians constitute a commission for the examination of alleged insane persons. In West Virginia there is a county commission of lunacy composed of the president and clerk of the County Court and the prosecuting attorney. Commitments are ordered by the commission. On the arrival of the patient at a hospital a board composed of the Superintendent and assistant physicians must be convened for the examination of the patient. Application for commitment must be made in Wisconsin by three reputable citizens. The determination of insanity in Wyoming must be made in all instances by a jury of six men.

When an insane person has been committed to an institution it is sometimes the duty of an officer of the court to accompany the patient to the hospital. The order of the court in Massachusetts includes the following:—"Now, Therefore, You, the said Sheriff, Deputies, Constables or Police Officers, and each of you, with necessary assistance, ... are hereby commanded, in the name of the Commonwealth of Massachusetts, forthwith to convey the said —— to the hospital aforesaid, and to deliver h— to the Superintendent thereof, and make due return of a copy of this precept with your doings therein." This practically amounts to a warrant of arrest and makes the removal of the patient to the hospital to all intents and purposes analogous to a criminal proceeding.

Attention should be called to one of the very excellent and humane provisions of the New York Law:—"All county superintendents of the poor, overseers of the poor, health officers and other city, town or county authorities, having duties to perform relating to the poor, are charged with the duty of seeing that all poor and indigent insane persons within their respective municipalities, are timely granted the necessary relief conferred by this chapter. The poor officers or authorities above specified, except in the city of New York and in the county of Albany, shall notify the health officer of the town, city or village of any poor or indigent insane or apparently insane person within such municipality whom they know to be in need of the relief conferred by this chapter. When so notified, or when otherwise informed of such fact, the health officer of the city, town or village, except in the city of New York and the county of Albany, where such insane or apparently insane person may be, shall see that proceedings are taken for the determination of his mental condition and for his commitment to a state hospital. Such health officer may direct the proper poor officer to make an application for such commitment, and, if a qualified medical examiner, may join in making the required certificate of lunacy. When so directed by such health officer it shall be the duty of the said poor officer to make such application for commitment. When notified or informed of any poor or indigent insane or apparently insane person in need of the relief conferred by this chapter such health officer shall provide for the proper care, treatment and nursing of such person, as provided by law and the rules of the commission, pending the determination of his mental condition and his commitment and until the delivery of such insane person to the attendant sent to bring him to the state hospital, as provided in this chapter."

In New York City these responsibilities are delegated to the trustees of Bellevue and Allied Hospitals and in the county of Albany to the Commissioner of Public Charities. In New York City a medical examiner or nurse from the psychopathic wards of Bellevue Hospital, or both, may be sent "to the place where the alleged insane person resides or is to be found." If in the opinion of this examiner medical care is necessary, the patient is taken to the psychopathic ward for observation for a period of not to exceed ten days. When a person has been committed to a state hospital in New York, the Superintendent is required by law to send a trained nurse or attendant to bring the patient to the institution. The desirability of having such cases under the immediate care of nurses who have had psychiatric training would seem to be obvious. There is no reason why persons suffering from mental diseases should be subjected to the same form of supervision that is given to criminals. The New York plan of holding the health officer responsible for providing proper hospital care and treatment for mental cases not coming directly under the legal jurisdiction of other persons or officials is well worthy of serious consideration. There would appear to be no reason why the health officer should not be responsible for mental conditions in somewhat the same way that he is for communicable diseases. Nor is there any public official to whom the supervision of the insane pending commitment can more logically be delegated.

In twenty-nine states voluntary patients may be received by state hospitals. The provisions of the law usually are that the patient must make application on his own initiative, that his mental condition must be such as to understand the purpose of this proceeding and the need of treatment and that he must be released on a demand in writing in from three to seven days of such request. In the twelve following states the temporary care of the insane in jails, usually as an emergency measure, is still authorized:—Arkansas, Colorado, Georgia, Indiana, Iowa, Nebraska, North Dakota, Oklahoma, South Dakota, Virginia, West Virginia and Wisconsin. Arrangements of some kind for the emergency care of cases pending examination and commitment are provided for in Connecticut, Illinois, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Washington and Wisconsin. Massachusetts has the most comprehensive provisions for temporary care and observation. The Superintendent of a state hospital may receive and detain, for not more than five days without a court order, any person whose case is "certified to be one of violent and dangerous insanity or of other emergency" by two qualified medical examiners. Officers authorized to serve a criminal process, or police officers, must, on the request of the applicant or one of the examining physicians, bring such a person to the hospital. The applicant for this form of admission must within five days arrange for the commitment of the person so received, or for his removal from the hospital.

Under the provisions of the Massachusetts Law a person found by two qualified examiners to be in such mental condition that his admission to a hospital for the insane is necessary for his proper care or observation may be committed for a period of thirty-five days "pending the determination of his insanity." The superintendent must discharge such a person within thirty days if not insane or report to the committing judge his opinion that the patient's mental condition is such as to require a further residence in the hospital necessary.

Under the provisions of the so-called "Boston Police Act" (chapter 307 of the Acts of 1910) all persons suffering from delirium, mania, mental confusion, delusions or hallucinations, under arrest or "who come under the care or protection of the police of the city of Boston" shall be taken to the Psychopathic Hospital "in the same manner in which persons afflicted with other diseases are taken to a general hospital." Cases suffering from delirium tremens or drunkenness may be refused by the hospital authorities; otherwise, all such persons are admitted, observed and cared for "until they can be committed or admitted to the hospital or institution appropriate in each particular case" unless the patient recovers or is discharged.

Under the provisions of the Massachusetts Law "No person suffering from insanity, mental derangement, delirium or mental confusion, except delirium tremens and drunkenness, shall, except in case of emergency, be placed or detained in a lockup, police station, city prison, house of detention, jail or other penal institution, or place for the detention of criminals. If, in case of emergency, any such person is so placed or detained, he shall forthwith be examined by a physician and shall be furnished suitable medical care and nursing and shall not be so detained for more than twelve hours." In Boston these cases are sent to the Psychopathic Hospital. In other parts of the state they are cared for by the board of health of the city or town in question until they can be committed to a hospital or cared for by relatives or friends.

The superintendent of a state hospital, under the authority of chapter 123 of the General Laws, "When requested by a physician, by a member of the board of health or a police officer of a city or town, by an agent of the institutions registration department of the city of Boston, or by a member of the district police 'may' receive and care for in such hospital as a patient, for a period not exceeding ten days, any person who needs immediate care and treatment because of mental derangement other than delirium tremens or drunkenness." Such cases are received on application in writing filed at the time of the reception of the patient or within twenty-four hours thereafter and must be discharged or committed within ten days unless they make a request for voluntary care. During 1920 there were 1,929 temporary care cases reported by the various Massachusetts state hospitals, as follows:

Boston State Hospital (Psychopathic Department) 1,049, Danvers 217, Northampton 188, Worcester 159, Taunton 154, Westborough 68, Foxborough 56, Medfield 33, Grafton 2, and Gardner State Colony 3.

Nowhere else in the country has this particular form of legislation been used so extensively. It is something more than a mere authorization for the reception of mental cases in observation or detention wards. Under its provisions, at the request of any reputable practicing physician and without further legal formalities, mental cases may be cared for in a state hospital until their condition can be definitely determined and arrangements made for their proper disposition and treatment. The criticism to which this plan is open is that the period of time, ten days, is not long enough. It should be extended to thirty days at least.

The provision of the Massachusetts Law for the determination of the mental condition of persons under arrest or held under criminal charges is an excellent one and well worthy of consideration. This is covered by chapter 123 of the General Laws:—"If a person under complaint or indictment for any crime, is, at the time appointed for trial or sentence, or at any time prior thereto, found by the Court to be insane or in such mental condition that his commitment to a hospital for the insane is necessary for the proper care or observation of such person pending the determination of his insanity, the Court may commit him to a State hospital for the insane under such limitations as it may order." The Court may in its discretion employ one or more experts to examine such persons. These cases are on recovery returned by the hospital authorities to the custody of the Court. One of the interesting features of the Massachusetts Law is the provision relating to persons indicted for murder or manslaughter but acquitted by a jury by reason of insanity. Such cases are committed to a state hospital for life and can be discharged only by the Governor of the state, with the advice and consent of the Executive Council, when he is satisfied, after an investigation by the Department of Mental Diseases, that such a person may be discharged "without danger to others." Persons charged with a crime "other than murder or manslaughter" and acquitted by a jury by reason of insanity may also be committed by the Court to a state hospital "under such limitations as it deems proper" and such orders may be revoked at any time.

A recent enactment (Chapter 415, Acts of 1921) provides that "Whenever a person is indicted by a grand jury for a capital offense or whenever a person, who is known to have been indicted for any other offense more than once or to have been previously convicted of a felony, is indicted by a grand jury or bound over for trial in the superior court, the clerk of the court in which the indictment is returned, or the clerk of the district court or the trial justice, as the case may be, shall give notice to the department of mental diseases, and the department shall cause such person to be examined with a view to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility. The department shall file a report of its investigation with the clerk of the court in which the trial is to be held, and the report shall be accessible to the court, the district attorney and to the attorney for the accused, and shall be admissible as evidence of the mental condition of the accused."

The whole question of methods of commitment was made the subject of an extended study by the National Committee for Mental Hygiene in 1919. A comprehensive report covering such legislation as was deemed necessary was submitted by a committee consisting of the following:—Dr. George M. Kline, Commissioner, Massachusetts State Department of Mental Diseases; Dr. Charles W. Pilgrim, Chairman of the New York State Hospital Commission; Dr. Owen Copp, Superintendent, Pennsylvania Hospital, Department for Nervous and Mental Diseases: Dr. Frank P. Norbury, of the Board of Public Welfare Commissioners of Illinois; and Dr. Frankwood E. Williams, Associate Medical Director, National Committee for Mental Hygiene. In addition to the ordinary form of commitment by a court of record in a civil proceeding, they recommended legislation in all states authorizing temporary and emergency care, observation pending the determination of insanity, and voluntary admissions. In a general way, the legislation recommended followed the lines of the present laws of Massachusetts and New York.