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Citizenship, Vulnerability and Mental Incapacity in England, 1900–1960s

  • Janet Weston (a1)

Abstract

Over the twentieth century, the Lunacy Office (renamed the Court of Protection in 1947) was responsible for appointing ‘receivers’ to manage the property of adults in England who were found incapable of managing their own affairs. Tens of thousands of people were in this position by the 1920s, and numbers continued to grow until after Second World War. This article uses the archives of the Office to examine the evolution of the concept of mental incapacity over the first half of the twentieth century, offering a corrective to the popular impression that the time before the Mental Capacity Act of 2005 was an era of ignorance and bad practice. It examines the changing ways in which being ‘incapable’ was understood and described, with particular reference to shifting ideas of citizenship. I argue that incapacity was not always seen as absolute or permanent in the first half of the century, that models of incapacity began to include perceived vulnerability in the interwar period and that women in particular were seen in this way. From the 1940s, though, the profile of those found incapable was changing, and the growing welfare state and its principles of employment and universality saw the idea of incapacity narrowing and solidifying around knowledge deficits, especially among the elderly. This brings the history of the Lunacy Office into the twentieth century and connects it to current concerns around assessments of mental capacity today.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Corresponding author

*Email address for correspondence: janet.weston@lshtm.ac.uk

Footnotes

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This research was funded by the Wellcome Trust, grant number 209884/Z/17/Z. Thanks to Virginia Berridge, Beverley Clough, Hazel Croft, Alex Mold, Susie Shapland and the anonymous reviewers for Medical History for their time and insightful feedback.

Footnotes

References

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1. In the National Archives in London (hereafter TNA), three files relating to Miss Alexander are currently open: J127/24 [1939], J127/25 [1939/40] and J127/26 [1940].

2. Section 90 (1) of the Lunacy Act 1890. The Act is reproduced in full in S.G. Lushington, Archbold’s Lunacy, 4th edn (London: Shaw & Sons, 1895).

3. Keely, T.C.S., ‘One Hundred Years of Lunacy Administration’, The Cambridge Law Journal, 8, 2 (1943), 198; Gerald E. Mills and Ronald W. Poyser, Lunacy Practice (London: Butterworth & Co, 1934), v; The Law Commission, Mental Incapacity: Mentally Incapacitated Adults (London: HMSO, 1995), 10.

4. As this article covers the work of this Office before and after the change of name, I will refer to both the [Lunacy] Office and the Court of Protection. For the avoidance of doubt, they are one and the same thing.

5. Toby Williamson interviewed by Dr Mark Porter on ‘Weaning Babies, Seeing the Same Doctor Saves Lives, NHS Research, Mental Capacity’, Inside Health, produced by Fiona Hill, BBC Radio 4, first broadcast 17 July 2018.

6. This perspective among new judges was highlighted by former Senior Judge Denzil Lush in a lecture delivered in November 2018 to the Association of Contentious Trust and Probate Specialists.

7. Work on earlier periods includes Ezra Hasson, ‘Capacity to Marry: Law, Medicine and Conceptions of Insanity’, Social History of Medicine, 23 (2009), 1–20; Mark Jackson, “‘It Begins with the Goose and Ends with the Goose”: Medical, Legal, and Lay Understandings of Imbecility in Ingram v Wyatt, 1824–32’, Social History of Medicine, 11 (1998), 361–80; Simon Jarrett, ‘‘‘Belief”, “opinion”, and “knowledge”: the idiot in law in the long eighteenth century’, in Patrick McDonagh, C.F. Goodey, and Timothy Stainton (eds), Intellectual Disability: A Conceptual History, 1200–1900 (Manchester: Manchester University Press, 2018), 162–89; Chantal Stebbings, ‘Protecting the Property of the Mentally Ill: The Judicial Solution in Nineteenth Century Lunacy Law’, The Cambridge Law Journal, 71, 2 (2012), 384–411; Akihito Suzuki, Madness at Home: The Psychiatrist, the Patient and the Family in England, 1820–60 (Berkeley, CA: University of California Press, 2006).

8. Peter Bartlett, ‘Sense and nonsense: sensation, delusion and the limitation of sanity in nineteenth-century law’, in Lionel Bently and Leo Flynn (eds), Law and the Senses: Sensational Jurisprudence (London: Pluto Press, 1996), 21–41; Peter Bartlett and Ralph Sandland, Mental Health Law: Policy and Practice, 1st edn (London: Blackstone Press, 2000), 349.

9. For example, Angharad E. Beckett, Citizenship and Vulnerability: Disability and Issues of Social and Political Engagement (Basingstoke: Palgrave Macmillan, 2006); Susan Pedersen, ‘Gender, Welfare, and Citizenship in Britain during the Great War’, The American Historical Review, 95, 4 (1990), 983–1006; Mathew Thomson, The Problem of Mental Deficiency: Eugenics, Democracy and Social Policy in Britain, c.1870–1959 (Oxford: Clarendon, 1998); Jonathan Toms, ‘Citizenship and Learning Disabled People: The Mental Health Charity MIND’s 1970s Campaign in Historical Context’, Medical History, 61, 4 (2017), 481–99.

10. Kathleen Jones, ‘Law and mental health: sticks or carrots?’, in German E. Berrios and Hugh Freeman (eds), 150 Years of British Psychiatry, 1841–1991 (London: Gaskell, 1991), 89–102; Kingsley Jones, ‘The Windham Case: The Enquiry Held in London in 1861 into the State of Mind of William Frederick Windham, Heir to the Felbrigg Estate’, British Journal of Psychiatry, 119, 551 (1971), 425–33; Clive Unsworth, The Politics of Mental Health Legislation (Oxford: Clarendon, 1987).

11. As characterised in Phil Fennell, Treatment without Consent: Law, Psychiatry and the Treatment of Mentally Disordered People since 1845 (London: Routledge, 1991), 12.

12. For example, David Armstrong, Political Anatomy of the Body: Medical Knowledge in Britain in the Twentieth Century (Cambridge: Cambridge University Press, 1983); Nikolas S. Rose, Inventing Our Selves: Psychology, Power and Personhood (Cambridge: Cambridge University Press, 1998).

13. Beverley Clough, ‘Disability and Vulnerability: Challenging the Capacity/Incapacity Binary’, Social Policy and Society, 16, 3 (2017), 469–81; Margaret I. Hall, ‘Mental Capacity in the (Civil) Law: Capacity, Autonomy and Vulnerability’, McGill Law Journal, 58, 1 (2012), 61–94.

14. Section 116 (d) of the Lunacy Act 1890.

15. TNA J92/10 [1911–39].

16. TNA J92/20 [1915–42].

17. Bartlett and Sandland, op. cit. (note 8), 341.

18. TNA J92/211 [1949–83]. Additional examples are TNA J92/89 [1938/39] and TNA J92/233 [1951–81].

19. TNA J92/29 [1918–39].

20. Mills and Poyser, op. cit. (note 3), p. 16. This was not the case in the earlier edition of the book, from 1927.

21. Joseph Elmer, The Practice in Lunacy under Commissions and Inquisitions, 6th edn (London: Stevens & Sons, 1877), 9. For more on inquisitions, which had largely disappeared by the early twentieth century, see Peter Bartlett, ‘Legal Madness in the Nineteenth Century’, Social History of Medicine, 14, 1 (2001), 107–31; Jarrett, op. cit. (note 7); Stebbings, op. cit. (note 7); Suzuki, op. cit. (note 7).

22. Elmer, op. cit. (note 21), 128, 129.

23. Bartlett and Sandland, op. cit. (note 8), 341.

24. Report of the Royal Commission on the Care and Control of the Feeble-Minded (London: HMSO, 1908), 259.

25. Royal Commission on the Law Relating to Mental Illness and Mental Deficiency 1954–57: Report (London: HMSO, 1957), 291.

26. On changing views of mental illness and treatment, see Akinobu Takabayashi, ‘Surviving the Lunacy Act of 1890: English Psychiatrists and Professional Development during the Early Twentieth Century’, Medical History, 61, 2 (2017), 246–69; Louise Westwood, ‘Explorations of Scottish, German, and American psychiatry: the work of Helen Boyle and Isabel Hutton in the treatment of noncertifiable mental disorders in England, 1899–1939’, in Volker Roelck, Paul Weindling and Louise Westwood (eds), International Relations in Psychiatry: Britain Germany, and the United States to World War II (Rochester, NY: University of Rochester Press, 2010), 179–96.

27. On criminal law: Arlie Loughnan, Manifest Madness: Mental Incapacity in Criminal Law (Oxford: Oxford University Press, 2012); Janet Weston, Medicine, the Penal System and Sexual Crimes in England, 1919–60s: Diagnosing Deviance (London: Bloomsbury Academic, 2017).

28. Report on the Law Relating to Mental Illness, op. cit. (note 25), 292; Donald G. Hunt and Maurice E. Reed, Heywood & Massey’s Court of Protection Practice, 8th edn (London: Stevens & Sons, 1961), vi.

29. Raymond Jennings, ‘Mental Disorder and the Court of Protection’, The Lancet, 279 (1962), 855–6.

30. Report on the Law Relating to Mental Illness, op. cit. (note 25), 291.

31. TNA J92/114 [1935–82].

32. For some typical examples, see TNA J92/114 [1935–82] and TNA J92/84 [1936–40].

33. Report on the Law Relating to Mental Illness, op. cit. (note 25), 292.

34. TNA J92/199 [1947–83].

35. For more on the Lord Chancellor’s visitors, see Michael Neve and Trevor Turner, ‘What the Doctor Thought and Did: Sir James Crichton-Browne (1840–1938)’, Medical History, 39 (1995), 399.

36. TNA J92/29 [1918–39].

37. TNA J92/100 [1927–82].

38. TNA J92/116 [1935–82].

39. TNA J92/59 [1928–41]; J92/63 [1929–39]. See also TNA J92/80 [1935–40].

40. TNA J92/94 [1939].

41. TNA J92/38 [1921–39]; J92/77 [1934–41].

42. For example, TNA J92/54 [1926–41], J92/83 [1936–39] and J92/97 [1924–81]. See also J92/3 [1902–39], where the receivership continued.

43. TNA J92/19 [1914–40]; J92/67 [1930–41].

44. TNA J127/227 [1964–76].

45. TNA J92/54 [1926–41]; TNA J92/12 [1912–40]; TNA J92/38 [1921–39]. See also TNA J92/19 [1914–40], TNA J92/77 [1934–41] and TNA J92/67 [1930–41].

46. TNA J127/39 [1921–41]; TNA J92/29 [1918–39]; TNA J92/41 [1922–40]. For an exception to the rule, Marriner Kemp was not consulted at all: TNA J92/42 [1922–42].

47. See the comments in, for example, Henry Studdy Theobald, The Law Relating to Lunacy (London: Stevens & Sons, 1924), 42, and later textbooks.

48. Mills and Poyser, op. cit. (note 3), 16.

49. Theobald, op. cit. (note 47), 5–6.

50. Beverley A. Clough, ‘New Legal Landscapes: (Re)Constructing the Boundaries of Mental Capacity Law’, Medical Law Review, 26, 2 (2018), 246–75: 255.

51. Report on the Care and Control of the Feeble-Minded, op. cit. (note 24), 7.

52. Mental capacity in the context of personal welfare decisions was defined in Re C (Refusal of Medical Treatment)[1994] 1 WLR 290. The meaning of being ‘incapable to manage one’s affairs’ was finally tested in Masterman-Lister v Brutton & Co [2002] EWHC 417 (QB) and [2002] EWCA Civ 1889. Thanks to Denzil Lush for bringing this latter case to my attention.

53. James Munby, ‘Capacity: A Lawyer’s Perspective’, Medico-Legal Journal, 80 (2012), 69. See also Report on the Law Relating to Mental Illness, op. cit. (note 25), 290. The exception to this is testamentary capacity, for which a four-part test was established in Banks v Goodfellow in 1870.

54. Bartlett and Sandland, op. cit. (note 8), 249.

55. For example, TNA J92/42 [1922–39]. Reportedly imagined illnesses are also recorded in TNA J92/22 [1915–42], J92/76 [1933–40], and crimes in TNA J92/3 [1902–39], J92/115 [1935–80].

56. Bartlett and Sandland, op. cit. (note 8), 249.

57. Pamela Dale and Joseph Melling, Mental Illness and Learning Disability since 1850: Finding a Place for Mental Disorder in the United Kingdom (London: Routledge, 2006); Mark Jackson, The Borderland of Imbecility: Medicine, Society, and the Fabrication of the Feeble Mind in late Victorian and Edwardian England (Manchester: Manchester University Press, 2000); Harvey G. Simmons, ‘Explaining Social Policy: The English Mental Deficiency Act of 1913’, Journal of Social History, 11, 3 (1978), 387–403; Thomson, op. cit. (note 9).

58. Thomson, op. cit. (note 9), 34.

59. TNA J92/14 [1913–41].

60. TNA J92/12 [1912–40]; TNA J92/207 [1948–81]; TNA J92/159 [1944–80].

61. TNA J92/12 [1912–40].

62. TNA J92/57 [1927–41]; TNA J92/61 [1928–41].

63. Many later files were closed in 1983, when unclaimed balances held by the Court of Protection – often relating to patients who had died decades earlier – were investigated. Unclaimed balances may have occurred more frequently among elderly patients outliving or losing touch with next of kin than among those classed as ‘mentally defective’.

64. Charlotte Greenhalgh, Aging in Twentieth-Century Britain (Berkeley, CA: University of California Press, 2018), chapter 1; Pat Thane, Old Age in English History: Past Experiences, Present Issues (Oxford: Oxford University Press, 2000), chapter 17.

65. Claire Hilton, Improving Psychiatric Care for Older People: Barbara Robb’s Campaign 1965–75 (Cham: Palgrave Macmillan, 2017), 26.

66. Claire Hilton, ‘Psychiatrists, Mental Health Provision and “Senile Dementia” in England, 1940s–79’, History of Psychiatry, 26, 2 (2015), 182–99; Duncan Wilson, ‘Quantifying the Quiet Epidemic: Diagnosing Dementia in Late 20th-Century Britain’, History of the Human Sciences, 27, 5 (2014), 126–46.

67. Jennings, op. cit. (note 29).

68. TNA J92/44 [1923–38].

69. TNA J92/92 [1939–40].

70. TNA J92/293 [1966–74]; J127/188 [1967–72].

71. TNA J127/221 [1973–75].

72. Armstrong, op. cit. (note 12); Courtauld Thomson, ‘A National Council for Mental Hygiene’, British Medical Journal, 1, 3196 (1922), 538; Jonathan Toms, Mental Hygiene and Psychiatry in Modern Britain (Basingstoke: Palgrave Macmillan, 2013).

73. Derek Morgan, Issues in Medical Law and Ethics (London: Cavendish Publishing, 2001), 87.

74. TNA J92/38 [1921–39].

75. Abigail Wills, ‘Delinquency, Masculinity and Citizenship in England 1950–70’, Past & Present, 187, 1 (2005), 157–85.

76. TNA J92/77 [1934–41].

77. For a summary of the debate, see Adrian Bingham, ‘“An Era of Domesticity”? Histories of Women and Gender in Interwar Britain’, Cultural and Social History, 1, 2 (2004), 225–33.

78. Pedersen, op. cit. (note 9), 1006.

79. Miss Alexander’s case has some similarities with a much more recent case heard in the High Court: London Borough of Redbridge v G[2014] EWHC 485 (COP).

80. It is difficult to be conclusive, particularly given the closure of later files and the paucity of correspondence from Miss Alexander, but reports from various parties describe her as happy and contented after returning to The Old Rectory, the house she very much loved and where she remained until her death. She is buried in the graveyard neighbouring The Old Rectory’s grounds.

81. Hall, op. cit. (note 13).

82. For example, Kenneth Hazell, Social and Medical Problems of the Elderly (London: Hutchinson Medical Publications, 1960); 50 000 Outside the Law: An Examination of the Treatment of those Certified as Mentally Defective (London: National Council for Civil Liberties, 1951); Care and Treatment of the Elderly (London: British Medical Association, 1949).

83. Royal Commission on the Law Relating to Mental Illness and Mental Deficiency: Minutes of Evidence, 8th Day (London: HMSO, 1954), 277.

84. Report on the Law Relating to Mental Illness, op. cit. (note 25), 293.

85. Thomson, op. cit. (note 9), 293.

86. A point made by Sir Ronald Poyser in evidence to the Percy Commission: Minutes of Evidence, op. cit. (note 83), 1196.

This research was funded by the Wellcome Trust, grant number 209884/Z/17/Z. Thanks to Virginia Berridge, Beverley Clough, Hazel Croft, Alex Mold, Susie Shapland and the anonymous reviewers for Medical History for their time and insightful feedback.

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