On the Mode of Procedure under 
the New Lunacy Law of the 
State of New York, 
With Suggestions of Methods under 
which its Provisions can most easily be carried 
into Effect, and also off Improvements in 
the Law Itself. 
BY 
KALP13 LYMAN PARSONS, A. M., M. D. 
HEPRINTED FROM THE 
Ns to Yovfe j-taetifcal Sournal 
for November 28, 1896. Reprinted from the New YorJc Medical Journal 
for November 28, 1896. 
ON THE MODE OF* PROCEDURE UNDER THE 
NEW LUNACY LAW OF THE STATE OF NEW YORK, 
WITH SUGGESTIONS OF METHODS UNDER WHICH 
ITS PROVISIONS CAN MOST EASILY BE CARRIED INTO EFFECT, 
AND ALSO OF IMPROVEMENTS IN THE LAW ITSELF* 
RALPH LYMAN PARSONS, A. M., M. D. 
The paper recently read by Dr. Jacoby before the 
Neurological Society, and the discussion which fol- 
lowed, elicited the fact that many physicians consider 
the new lunacy law of the State of New York as unrea- 
sonably obstructive in its character; so much so, indeed, 
that some of the eminent physicians who joined in the 
discussion expressed the intention of hereafter refrain- 
ing from placing their insane patients under legal care 
within the State. 
If this view of the character of the law is well 
founded the interests of the unfortunate insane are so 
jeopardized thereby that the most strenuous efforts are 
demanded to secure its annulment or its modification. 
It is a well-established fact that, as in many other 
diseases, so in insanity, the issue of life or death, of re- 
covery or of lifelong mental impairment, often depends 
upon the promptitude with which the sufferer is placed 
* Read by title before the New York Neurological Society, Novem- 
ber 3, 1896. 
Copyright, 1896. bt D. Appleton and Company. 2 
THE MODE OF PROCEDURE 
under the most favorable conditions and under the most 
efficient care and treatment. And it is also a well-estab- 
lished fact that the promptitude with which efficient 
remedial measures are likely to be taken depends great- 
ly upon the facilities which are afforded for the secur- 
ing of such treatment, and on the absence of unneces- 
sary formalities and obstructions. 
Unfortunately, most persons who are afflicted with 
mental diseases, even in the milder forms, can be 
treated more efficiently and with better prospect of 
recovery when quite separated from their relatives and 
from their customary surroundings than in their own 
homes, however favorably situated their homes may he. 
But very naturally the relatives and friends of such per- 
sons are usually slow in realizing the truth and in con- 
senting to place the invalid in the care of strangers; 
and the delay in taking the necessary steps is natu- 
rally increased with every additional formality and ob- 
struction that may be placed in the way. The best con- 
dition of things, in the interest of these patients, would 
be the removal of all legal formalities whatever, allow- 
ing them to he placed under proper care and treat- 
ment precisely as a person ill with pneumonia or of a 
fever may now be placed in hospital care. But there 
are two special reasons which render this amount of 
freedom unadvisable. The first is in the interest of the 
mental invalid who may not understand that he is ill, or 
who may not he willing to submit to the needed care and 
treatment. In such case the will of another must needs 
he substituted for his own, and this requires the author- 
ization of the law. The second reason why such free- 
dom in placing uncertified mental invalids under com- 
pulsory care is unadvisable and even inadmissible is in UNDER TIIE NEW LUNACY LAW. 
3 
the interest of that great body of our citizens who are 
not insane; lest, possibly, some of these persons should 
he kidnapped and placed under restraint as a lunatic. 
And it must he admitted that upon rare occasions 
some person who may he considered as technically sane 
does conduct himself in such a manner as to lead to the 
mistake of adjudging him a lunatic. It must also he ad- 
mitted that, while these mistakes are very rare, and while 
the circumstances are such that serious harm is seldom 
if ever done, something must be conceded to the fears 
of a few oversensitive hut influential individuals who 
demand protection against the possibility of such mis- 
takes. But this concession should not be of such a 
nature as to jeopardize the interests of thousands of 
the insane in favor of a few persons whose mental 
status, at the best, may be considered as a doubtful 
one. 
For example, about seven thousand insane persons 
are admitted to the hospitals for the insane of this State 
each year. Of this number, probably one tenth of one 
per cent, are cases in which the mental derangement 
proves not to he what is technically considered as in- 
sanity; as, cases of acute brain disease, alcoholism, etc.; 
and of these cases of mistaken diagnosis, for years past 
at least, all have manifested symptoms of a failure of 
mental integrity, and not a single one has been found to 
be a victim of malicious persecution or of improper 
motives. 
And so it is of the utmost importance that the mem- 
bers of this society, together with the great body of 
medical men whose opinions, unfortunately, were not 
sought by the eminent legislators who were engaged 
in the revision of the law, should carefully study its 4 
TIIE MODE OE PROCEDURE 
provisions and method of procedure; to the end, on the 
one hand, that they may make its application as har- 
monious as possible, and, on the other, that they may ex- 
ert their influence in procuring the correction of such 
faults as may be found to exist. And furthermore, if 
it is found that, with the most judicious management, 
a strict method of procedure under the present law is 
likely to prove prejudicial to the interests of the insane, 
there can be little doubt that the judges will be able 
and willing so to interpret its provisions as to remove 
or greatly mitigate any asperities that may be discov- 
ered, in case the defects in the law are properly brought 
to their knowledge. 
The character of the law, as a whole, can be most 
conveniently studied by considering each of its provi- 
sions by itself. 
The first provision, in logical order regarding the 
certification of the insane, is the petition. This is a 
form under which some person is required to take the 
initial step of requesting that an alleged insane person 
be placed under legal care; and in this petition the peti- 
tioner must state some reason why he thinks the cer- 
tification should be made. Now this is a step that has 
always been taken, and that always must be taken in 
some way. Some person who is interested always does 
make a request, either to an officer of the State, or more 
likely to a physician, that the alleged lunatic be exam- 
ined with reference to his mental condition. He makes 
this request or petition because he has reasons for mak- 
ing it; and any physician he might consult would cer- 
tainly ask for and receive a statement of these reasons. 
The only difference, then, between what was done under 
the former law, in this respect, and what is required UNDER TIIE NEW LUNACY LAW. 
5 
under the new, is the putitng of the request or petition 
in legal form, and so making it a matter of record, in 
like manner as the certificate of the examining physi- 
cians is made a matter of record. In the revision of the 
law the legislators have probably had in mind the prece- 
dent furnished by the lunacy laws of England and of 
Scotland, in accordance with which a petition, made 
in due legal form, is the first step in the process of 
certification. Or, they may simply have thought that 
a request or petition was logically a step that should 
be made part of the record. 
The question now is, whether this placing of the 
request or petition in legal form and making it part of 
the record is open to objections; and, if so, \shat the 
objections are, and how they may best he obviated. 
It is clear that the petition can not increase the 
responsibility of the physicians. On the contrary, it 
must diminish their liability to suffer from suits for 
damages. But it is possible and even probable that, in 
some cases, the necessity of making a formal petition 
may deter friends of insane patients from seeking to 
place them under legal care as soon as they otherwise 
would do, so that great damage may thus be done to 
some of the insane by diminishing the probabilities 
of a cure. Ordinary delays are often prejudicial. 
Additional delays would serve to increase the danger. 
It may he said that invalids should not be allowed to 
suffer through a mere technicality or sentimentality. 
But things must he taken as they are, rather than as 
they ought to he. 
The petition is liable to he a deterrent in three dif- 
ferent ways: First, through an unwillingness to take 
the formal initiative; in the second place, through lack 6 
THE MODE OF PROCEDURE 
of knowledge how to make the petition in proper form; 
and, in the third place, through an unwillingness to 
seek the services of a lawyer in a case which seems 
to the petitioner, at least at this stage, as being purely 
medical in its nature. 
The first of these possible deterrents can not he en- 
tirely avoided while the law remains as it is. But its force 
may he greatly diminished, if not entirely obviated, by 
showing that the petitioner always has and always must 
take the initiative; that it is a responsibility that he 
ought to take; and that the jurat does not really in- 
crease his responsibility. 
The second and third of these deterrents may be 
easily and entirely obviated by the medical examiners. 
When the petitioner calls in the services of the examin- 
ers, as he always must do, and when he has stated to 
them his reasons for seeking their services, they have 
only to write his statements in the petition in proper 
form, with a request that he have the jurat added by 
the most convenient notary. This will add little if at 
all to the labors of the examiners; for, in any case, they 
would keep a record of the pertinent statements of the 
petitioner. But, in addition, the examiners might 
arrange to have the jurat of the petitioner taken at the 
same time with their own, either at their office or at 
some convenient place elsewhere, thus relieving the 
petitioner of the annoyance even of seeking the services 
of a notary. 
The suggestion has been made by the State Com- 
mission in Lunacy that “ medical examiners are required 
to fill out only the certificate.” But, while they are re- 
quired to do this only, the statements above made 
may serve to show how physicians may remove obstacles UNDER TIIE NEW LUNACY LAW. 
7 
which might seem serious to friends of patients with 
little trouble to themselves. 
The next point for consideration is the personal 
service. The law directs as follows, to wit: “ Notice of 
such application (or petition) shall he served personally, 
at least one day before such application, upon the per- 
son alleged to he insane,” etc. The object of this pro- 
vision was, undoubtedly, the prevention of the confine- 
ment of persons who were not insane, as lunatics, under 
the hypothesis that hitherto this has been an imminent 
danger. It may safely be assumed that medical men 
who are conversant with the subject will agree in the 
opinion that it was not needed; hut the point that now 
requires especially to be considered is, whether it is 
likely to be prejudicial; and the answer to this question 
will depend very much on the interpretation that may 
be given to the provision, and on the disposition of the 
judges in regard thereto. 
If the personal service regulation is interpreted to 
mean that a formal legal paper is to he served, inform- 
ing the mental invalid that an application is about to 
be made to the court to have him declared a lunatic, and 
that he is to be placed in legal custody as such, the 
service of such a paper can he considered little less than 
an outrage. It would he a sort of citation to answer a 
legal charge of being a lunatic, and offensive as such. 
But certain lawyers, at least, have so interpreted the 
intent of the law. If this is the proper interpretation, 
medical men who are conversant with the subject can 
hardly fail to agree in the opinion that judges should, 
in almost every case, dispense with the personal service, 
on the ground either that the service would be in- 
jurious, or that it would be useless, because the patient 8 
TIIE MODE OF PROCEDURE 
would fail to understand its meaning. The mere pre- 
tense of serving such a paper, without the person 
served having an opportunity or the ability to get a 
knowledge of its contents, would be worse than an 
evasion or a subterfuge—it would be a fraud. And it 
may be asserted with little fear of contradiction that 
very few lawyers or judges would be willing to serve 
such a paper on an intimate friend or on a member of 
their own family. It may be admitted, however, that in 
very rare cases indeed the service of such a legal paper, 
or even the formal trial of an alleged lunatic before a 
judge, may be of advantage to the patient. This would 
happen especially in incurable cases, which are some- 
times classed as paranoiacs. But the same course might 
have been pursued under the former law. 
If, however, personal service is interpreted to mean 
a verbal statement to the supposed lunatic that, in ac- 
cordance with the advice of eminent physicians, meas- 
ures were being taken to have him placed under medical 
custody and treatment at a specified place, or some 
equivalent statement, the personal service provision may 
not only be made harmless, but even advantageous, with 
the proviso that it be dispensed with in unsuitable cases. 
It is probably not well enough understood that in 
the case of many of the insane a candid statement 
should be made to them of what is proposed to be done; 
that under the best medical advice it has been decided 
to place them in some specified hospital or under some 
specified care. This' course tends to prevent a feeling 
that they have been unfairly dealt with, or that they 
have been deceived, and so renders them better satisfied 
with the care under which they may be placed. Other- 
wise they are apt to think that some mistake has been UNDER THE NEW LUNACY LAW„ 
made, that they are unjustly and illegally detained; 
and so the moral influences that may he brought to bear 
upon them at the hospital may for a time he rendered 
nugatory. 
But there are reasons in many cases why it is better 
to delay informing the patient of what is being done 
until his arrival at the hospital; to which he may often 
he taken without protest and without any explanation 
whatever. In the first place, the friends of patients 
may he so averse to having them informed of what is 
being done that they would neglect or refuse to seek 
such care and treatment as may he urgently needed. 
They may have fears lest the invalid should be excited 
and so injured by the information, or lest he should 
make a violent opposition which would he very dis- 
tressing to other members of the family. And, in fact, 
these fears would often he realized. But many patients 
who would strenuously oppose removal to a hospital, if 
informed of it in advance, quietly accept the situation 
when they are once there, and are then informed of 
what is being done for them, as should always be the 
case when the patient has intelligence enough to appre- 
ciate what is being said. 
A wise provision is made under the revised lunacy 
law whereby the judge may, in his discretion, dispense 
with personal service, by making a formal statement 
of his reasons therefor. 
If, now, personal service he interpreted to mean the 
placing in the hands of the alleged lunatic of a legal 
paper informing him of the charge about to he made 
against him, there is likely to be little difference of opin- 
ion among competent alienists that the personal service 
should he dispensed with in almost all cases. 10 
THE MODE OF PROCEDURE 
When personal service, however, whether formal or 
verbal, is dispensed with, the judge will naturally depend 
upon the medical examiners for the reasons on which his 
decision is founded. If a statement of these reasons 
by the medical examiners in the certificate should be 
considered satisfactory by the judges, as would seem prob- 
able, this method would have the merit of simplicity; 
and, moreover, the reasons of the medical examiners 
would constitute a part of the record in the body of 
the certificate. 
Whenever personal service has been made, whether 
formal or verbal, it would seem that a statement of the 
fact in the petition should be a sufficient verification 
for the information of the judge. This procedure, 
moreover, would have the merit of simplicity, and of 
constituting a part of the record. 
The procedure for the certificate of the medical ex- 
aminers remains the same under the revised law as 
under the old, and hence does not require examination. 
The order of hearing under the revised law does 
not differ essentially from the legal measures that might 
have been and sometimes were instituted, de lunatico 
inquirendo, under the old law, and so does not require 
consideration. 
In regard to the functions of the judge, the revised 
law differs from the old in this, that now “ the judge 
to whom such application is made may, if no demand 
is made for a hearing in behalf of the alleged insane 
person, proceed forthwith to determine the question of 
insanity, and if satisfied that the alleged insane person 
is insane, may immediately issue an order for the com- 
mitment of such person to an institution for the custody 
and treatment of the insane ” ; while the old law directed UNDER THE NEW LUNACY LAW. 
that “ no person shall be committed to or confined as a 
patient in any asylum . . . except upon the certificate 
of two physicians, under oath, setting forth the insan- 
ity of such person ” ; and that “ such certificate he ap- 
proved by a judge or justice of a court of record.” The 
discussion of the five-day clause is deferred until later 
on. 
Now, whether the functions of the judge, under the 
revised law, are likely to increase the difficulties and 
cause harmful delays to he experienced in the process of 
placing mental invalids under needed care and treat- 
ment will depend in part on the interpretation given 
to the law, and in part on whether the judges are dis- 
posed to view the welfare of thousands of insane pa- 
tients as of paramount importance, or whether they be- 
lieve it to be the most important part of their duty to 
prevent the possible mistake of having a person who 
is technically sane adjudged a lunatic; an event which 
is liable to happen under any possible method of pro- 
cedure; for it will readily be understood that such mis- 
takes could only he made in cases in which the person 
had acted more or less like a lunatic. And it is proper 
to state in this connection that none of the commission- 
ers in lunacy of this State have ever found a case in 
which a sane person was declared a lunatic through 
improper motives. 
The distinguishing point of difference between the 
wording of the new law and the old regarding the func- 
tions of the judge is that under the former he “ may 
proceed forthwith to determine the question of insan- 
ity, and if satisfied that the alleged insane person is 
insane may immediately issue an order for the com- 
mitment of such person,” while under the old law the 12 
THE MODE OF PROCEDURE 
judge approved the findings of the medical examiners; 
and this approval 'constituted the authorization for 
placing the insane person in hospital care. 
It was certainly the intent of the old law that the 
judge should be satisfied of the insanity of the alleged 
lunatic. It was to this end that the evidences of in- 
sanity were written out in the medical certificate; and it 
was to this end that certain physicians were qualified 
as medical examiners, thus indorsing them as witnesses 
upon whose testimony and opinions the judges might 
rely. And this approval of the judge certainly had the 
effect of an orderly commitment. But it was not in- 
tended that the functions of the judge should of neces- 
sity be a trial of the case, although he had the power to 
“ institute inquiry and take proofs as to any alleged 
lunacy before approving or disapproving of such certifi- 
cate.” And he might, “in his discretion, call a jury in 
each case to determine the question of lunacy.” So far 
as appears, then, from the wording of the law, there is 
no substantial difference between the old and the new, 
in regard to the functions of the judges. And so it is 
quite within the sphere of their duty to make the pro- 
cedure in lunacy cases quite as prompt and as little ob- 
structive under the new law as it was under the old. 
Nor is there any sufficient reason to believe that the 
increase of formalities under the new law will induce 
judges to place obstructions where none, of necessity, 
exist; and especially when it is brought to their notice 
that obstructive delays are sure to be injurious. 
If, then, the procedure for the commitment of in- 
sane persons to hospital or other care, under the revised 
lunacy law, can be put in practice in some such simple 
way as has been suggested, to wit, by the examining UNDER THE NEW LUNACY LAW. 
13 
physicians undertaking the management of whatever 
pertains to the petition by including in the petition 
the statement that personal service has been made, if 
this has been the case; or by including in the medical 
certificate a statement of the reasons why personal serv- 
ice is considered unadvisable, if this is the case; and 
with the wise concurrence of the judges in avoiding such 
formal obstructions as are required neither by the terms 
of the law nor by the nature of the particular case in 
question; there seems to be no reason why the procedure 
need be obstructive in its character, in so far as the 
actual provisions of the law are concerned. 
But a provision of the old law which was very im- 
portant in character has been omitted in the new—the 
five-day clause, under which a person who had been 
found by legal medical examiners to be deranged in 
mind might be placed and detained in a hospital for 
the insane for the term of five days before securing the 
approval of a judge. This provision was included in 
the law of 1874 at the suggestion of the Medical Super- 
intendent of the New York City Hospital for the In- 
sane, with the explanation that patients were some- 
times received at the hospital in such a state of physi- 
cal exhaustion that recovery was hopeless, but some of 
whom, at least, might have been expected to recover 
if they could have received proper care a little sooner. 
In some of these cases the attack had been sudden and 
severe, or had supervened during an attack of some 
other exhaustive disease; or, in other cases, friends had 
delayed placing them under proper treatment until ex- 
haustion was imminent. The time required to find a 
judge and for legal formalities was sufficient to decide 
the question between recovery or death. And at that 14 
TI1E MODE OF PROCEDURE 
time the legal formalities were few. The necessity for 
some such provision was still greater in the country, 
where both hospitals and judges were often difficult of 
access. It was found also that this provision, which 
was intended for emergencies only, was of great use 
under less serious circumstances; as when the insane 
person was dangerously violent, or suicidal, or so noisy 
as greatly to disturb the neighborhood; or when he had 
no home or no friends to undertake his care. The five- 
day clause simply provided for legal, humane deten- 
tion in a hospital, where proper treatment as well as care 
could he furnished; instead of detention without the 
authority of law at home, in a hotel, in a police station, 
or in some other place unsuited to the requirements of 
the case. 
It should be stated, however, in this connection, 
that the five-day clause of the former lunacy law, which 
was intended by its originators for cases of emergency 
only, was not so understood by many physicians. They 
understood and made use of it as subserving purposes 
of mere convenience. Indeed, the practitioners of a 
neighboring city perverted its intent by uniformly neg- 
lecting to secure the approval of a judge at all, leaving 
it for the physician in whose care the patient had been 
placed to secure such approval. In the re-enactment of 
the emergency clause, then, it should be clearly stated 
that it is a provision for cases of emergency. The ex- 
amining physicians should be required to state in the 
emergency certificate what the emergency is; and a copy 
of this certificate should be submitted to the judge when 
he is called upon to act in the case. 
A little more than a year ago, when certain lawyers 
were urging the enactment of laws which should pre- UNDER THE NEW LUNACY LAW. 
15 
vent the kidnapping of sane persons and confining them 
as lunatics, or, at least, the prevention of mistakes in 
diagnosis, and who among other measures of prevention 
were urging the abrogation of the emergency clause, a 
circular letter was written to the medical superintend- 
ents of the hospitals for the insane of this State making 
inquiry whether they considered this provision as a use- 
ful one. Ten replies were received, and all of these 
replies were in the affirmative, and to the effect that the 
emergency clause should he retained as a part of the 
lunacy law. When physicians in general practice ex- 
press this opinion, as they generally if not uniformly 
do, it may he alleged that they are interested in hav- 
ing the power to rid themselves of a particularly try- 
ing patient. But it can not be maintained by the most 
censorious that hospital superintendents are influenced by 
any such motives. The motives which impelled them 
to this opinion were evidently unselfish and humanely 
in the interest of the patients who came under their 
care; for the reception of patients under the emer- 
gency clause was a source of anxiety, lest the examin- 
ers should fail to secure the required approval in due 
time. 
But the view that the emergency clause is a useful 
one is not confined to the physicians and the medical 
superintendents in the State of New York. This pro- 
vision has been included in the lunacy law of England, 
enacted in 1890, and also in the lunacy law of Scot- 
land. The English law is, in part, as follows, to wit: 
“ In cases of emergency where it is expedient, either 
for the welfare of the person (not a pauper) alleged to be 
a lunatic, or for the public safety, that the alleged luna- 
tic should be placed forthwith under care and treat- 16 
PROCEDURE UNDER THE NEW LUNACY LAW. 
merit, he may be received and detained at an institution 
for lunatics, or as a single patient, upon an urgency 
order, made (if possible) by the husband or wife or by 
a relative of the alleged lunatic, accompanied by one 
medical certificate.” Also, “ an urgency order shall re- 
main in force for seven days from its date.” 
The Scotch emergency provision is similar in char- 
acter, hut allows detention for three days only, without 
the usual legal order. 
Inasmuch as the practice in this State for more 
than twenty years, the unanimous opinion of general 
practitioners, of examiners in lunacy, of State com- 
missioners in lunacy, and of superintendents of hos- 
pitals for the insane of this State, and the practice 
both in England and in Scotland are in favor of a law 
authorizing the detention of alleged lunatics, in emer- 
gencies, for a certain period of time, it is incumbent 
on those physicians who are especially interested in 
the welfare of the insane to unite in urging upon the 
Legislature the re-enactment of the emergency clause 
of the lunacy law, with such modifications as may serve 
to prevent its abuse and give it definiteness of form. 
And then, if the expectation is well founded that 
the judges of the State of New York will he disposed 
so to interpret the provisions of the revised lunacy law 
that the mode of procedure shall he as fully in the 
interest of those unfortunate persons who are to be- 
come the wards of the State as was the mode of pro- 
cedure under the former law, there can he little doubt 
that physicians will be able and willing so to act, direct, 
and manage as to protect their patients from harm and 
relieve the friends of their patients from undue anx- 
iety and annoyance. The New York Medical Journal. 
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