The fundamental problems in both cases were
- the inability of the inmate
to communicate with anyone who might help
- the inability of anyone
concerned about a disappearance to establish what had happened or
effectively investigate.
Both problems were deliberately manufactured by
those who ran the houses.
The significance of the Act's provisions becomes evident in the
light of the problems it sought to remedy:-
A
certificate was required before
admission (section 21).
Given the variety
of medical practitioners who could who could provide one this was a very
weak safeguard, but it did operate before confinement and so before the
courts could be called on to redress a grievance.
Requiring madhouses to have
licences (section one)
meant they would be
registered and known. In 1828 a Royal College of Physicians commissioner
described this as the
whole object of the licence. Dr William Heberden insisted the Act had
sought:
"merely to prevent people being smuggled into confinement, and therefore
the object of the licence was only that of knowing where the houses were
that people were to be found."
He contrasted this with the revocable licences proposed in the
1828 Madhouses Bill
(3.2).
In reading that, it had seemed to him:
"as if those who framed this Bill had considered the licence of a house
of this kind as the licence of a public house, and that the licence should
be withdrawn if they misconduct themselves"
(1828 SCHL p.726)
As the
1773 Bill
had a revocation clause licences must have been intended
originally to do more than register the houses (and finance the
commission), but the concern to identify the houses was shown in the 1773
clause requiring a notice to be displayed
(2.3.2)
Requiring
admission notices
(section 21)
and
registers (sections
15, 17, 21, 24)
meant a
central authority knew who was confined in a licensed house and where. By
the
search procedure
(section 19)
the information was available to anyone
with a "reasonable" interest: so if one suspected a friend was confined,
there was a comparatively simple means to find out if the suspicion was
correct.
The official visits, backed by the
sanction that a house could
lose its licence if admission was refused
(section 16), broke
through the totality of
confinement in which some houses attempted to keep patients by preventing
any communication with the outside world.
By itself the Act gave no remedy for the detention of a sane person if
certified and notified on admission. The commissioners could not liberate
and any powers JPs had to do so were external to the Act. The knowledge of
what was happening made possible by registers and visits must have enabled
commissioners or interested enquirers to secure a release through
persuasion (of the keeper, or the person who confined the patient)
sometimes, but if that failed, the formal remedy lay where it always had
done: in the courts.
The
court order (section
29) gave the
Westminster courts means to establish
basic facts without lengthy and expensive enquiries. From the registers
they could find out if someone had been sent to a licensed house, the name
and address of the person who sent and the doctor who certified; and (from
visiting minutes) the character of the house. All but the last (*) might
have been ascertained by the complainant by a search enquiry before going
to the court, but although a commissioner could refuse an enquirer, the
court's order could not be refused.
(*) The minutes in the registers (apart from any extracts displayed in the
censor's room
(section 15)) were
available to no one outside the Royal College
of Physicians except the
Westminster courts
(see note on
access)
The courts could also examine anyone engaged in executing the Act, or order
commissioners or county visitors to visit a house and report on any issue.
The doctor sent by Lord Mansfield to Turlington's was simply refused
admission. Such an obstruction of the court could now lose a house its
licence.
The Royal College of Physicians was to enforce the Act through the
Westminster courts, County Clerks, it appears, did so through Quarter
Sessions
(see section 27). The
only points on which they could enforce were the five
offenses with penalties or forfeitures attached: