Scottish Court of Session Decisions

The Lunacy (Scotland) Act 1857 (20 and 21 Vict. cap. 71) enacts—section 78—“If the parish of the settlement of any such pauper lunatic cannot be ascertained, and if the lunatic has no means of defraying the expense of his maintenance, nor any relations who can be made liable for the same, the expenses attending the taking and sending such lunatic, and of his maintenance in the district asylum, shall be defrayed by the parish in and from which he was taken and sent, but with recourse, nevertheless, to such parish, at any time when it shall appear that such expenses are legally chargeable to any other party or parish, against such party or parish, and who or which shall be liable also in interest and expenses; and the sheriff of the county in which the parish defraying such expenses in the first instance is situated shall certify under his hand the amount of such expenses; and such certificate shall be final and conclusive as to such amount, and shall not be subject to review by any process whatsoever under any proceeding instituted for recovery of the same; and the party entitled to recover such expenses shall proceed as accords of law against the party or the parish liable for the same, by summary process before the sheriff of the county within which such party resides, or in which such parish is situated, and the judgment of such sheriff shall be final.…”

On 31st March 1910 the Parish Council of Stirling brought an action in the Sheriff Court at Dunblane against the Parish Council of Dunblane and Lecropt to recover sums incurred, and for relief from future expenditure, on account of Marjory Faichney, an inmate of Stirling District Asylum, Larbert, who became chargeable to the parish of Stirling on 18th March 1908.

The pursuers pleaded, inter alia—“(2) The said Marjory Faichney being mentally incapable of acquiring a settlement by residence while in Stirling, the defenders are liable for her maintenance.”

The defenders pleaded, inter alia—“(5) The said Marjory Faichney being capable of acquiring a settlement by residence, and having acquired such in the parish of Stirling by residence there for more than three years without having recourse to common begging, and without having received or applied for parochial relief, the defenders are not liable for her maintenance and are entitled to absolvitor, with expenses.”

On 1st March 1911 the Sheriff-Substitute ( Sym) after a proof pronounced the follow-interlocutor—“Finds in fact (1) that the action relates to the parish by which, as parish of settlement, Marjory Faichney,… is liable to be supported, and that it is not in dispute that the pursuers' parish of Stirling, or the defenders' parish of Dunblane and Lecropt, is the parish of her settlement; (2) that she is the daughter of William Faichney, labourer, Dunblane; (3) that she was born in 1891, and attained puberty in May 1903, at which time she was living with her mother in Stirling; (4) that her father died in 1902 in Stirling, but having a residential settlement, which he had never lost, in Dunblane; (5) that, at all events from very early youth she has never been of normal intelligence, and that in 1908 she was certified to be insane; (6) that she is now a certified lunatic in Larbert Asylum under certificate of lunacy granted at said time; (7) that the Parish Council of Stirling in this action seek from the Parish Council of Dunblane reimbursement of sums paid for her support, and declarator that Dunblane, not Stirling, is liable in future for her support, maintaining that she never could or did acquire a settlement, and that Dunblane, as the parish of birth or the parish of her

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settlement, is the parish of her settlement; (8) that Dunblane contends that she was able to acquire and did acquire a residential settlement in Stirling by residence for three years after the time of attaining puberty in 1903, during which years she was maintained without recourse to common begging or to parochial relief; (9) that she is not an idiot, but that her case is one of strong body, but of undeveloped mind and of much imbecility; (10) that there had been no pronounced change in her state prior to said certification, and that she might with the same justification have been certified insane at any time after attaining puberty; Therefore finds ( a) that she is a lunatic, and ( b) was incapable of acquiring a settlement: Finds further in fact (11) that it is not established that the parish of Stirling has admitted that her settlement is in that parish, or (12) that the parish of Stirling has so acted as to deprive the parish of Dunblane of any evidence or to prejudice the position of that parish: Therefore finds that her settlement is not in Stirling, but is in the defenders' parish of Dunblane; Repels the defences, and grants decree of declarator and reimbursement as concluded for.”

Note.—“The state of this young woman appears to be as follows:—She has been weak in mind from very early youth, and probably from birth. She was sent to school when she came to school age, but never made any real progress, though she learned to read a very few small short words and to write a very little, apparently by copying what was written for her. As she grew into a big girl, she did not associate with young people of her own age, but played with little children. She could distinguish between certain coins, such as a penny or a shilling, but she could not distinguish between such coins as a florin and a half-crown. At her home with her married sister she was very passionate without reason. She could wash a few dishes under supervision, but could not be trusted alone to go through the washing of the few dishes after a meal at which the family of three persons had been present. She could not be trusted to watch a pot on the fire, nor did she learn the time properly on the clock. Though fond of playing with children, she could not be trusted to ‘mind’ a baby for any length of time alone lest she should drop the baby when carrying it about. She was of dirty habits in her person, though she could manage as to the calls of nature without guidance. She could go a simple message at times, but could not be trusted with more than one message.

“In youth Marjory Faichney did not have the advantage of the special care and skilful training which can now be afforded for very feeble-minded children. It is quite possible that if early taken into such care she could have learned more than she did. An ordinary industrial school could not have taken her. It appears that since she has been placed in Larbert Asylum as a young woman she has, though very slowly, learned a certain amount more. She can now write her name if asked, and if in a humour to do it, can sing over, or at least say over, a piece of a hymn or a song, can sew some simple sewing, and can knit, and knows coins, and how many pennies go to sixpence, and can do a little simple addition. Some days, it is thought, she is more willing or more able than others to concentrate such mind as she possesses upon the questions put to her, and she may feel more friendly to some people than to others. It does not seem possible to find that she has ever had delusions—though in conversation with Dr Skinner she maintained wrongly that ‘General’ Booth of the Salvation Army was in Stirling at a particular time when he was not. But then he has been sometimes in Stirling, and she was often at Salvation Army meetings, and this may be just a stupid mistake—obstinately adhered to. Physically the girl is fairly well grown and strong. She was at one time sent away to a Salvation Army ‘Home’ in Dundee, with the idea that this would save her from the ‘sexual dangers’ which her sad state made very evident (these dangers have something to do with her being certified a lunatic), and with the idea that, with firm control and work to do she could be taught to do a maidservant's work. But though the experience was very short it was negative of her powers so far as it went, and the matron of the ‘Home’ did not consider her a case of sufficient intelligence to be hopeful, and handed her over to the poor law authorities because she was suffering from a skin disease (impetigo). This disease assailed her because of a low state of health at the time, and of the dirty habits contracted before she went to the ‘Home.’

On the evidence the Sheriff-Substitute considers that this young woman has always been unable to earn her own living, and that she has always been unable to do more than a little simple house-work under close supervision. She is not an idiot. She is of small and undeveloped intelligence requiring the guidance and management and aid of others to enable her to have any decent life. She might never have been certified lunatic had the means, and perhaps the wisdom, of those around her, enabled them to give to her the special care she needs. She has been getting that for more than two years now, but under a lunacy certificate.

[ After examining the authorities, the Sheriff-Substitute proceeded]—“In this case Stirling's contention is that there has been no deterioration making Marjory Faichney liable to be certified in 1908 though not sooner, but, on the contrary, that she could have been certified before the alleged qualifying residence began or at any time during it. In the examination of the evidence it is to be noticed that there are sundry medical certificates relating to the girl's state which do not affirm lunacy at all. As to this certain of the doctors artlessly say, ‘Oh, yes, but then these were only certificates for getting her into the poorhouse.’ It is also to be noticed that

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when an asylum was thought to be the best place of care it was not at all an easy matter to grant a certificate. Thus Dr Murray, Medical Officer for Stirling (pursuer) says—‘I was requested by the inspector to watch the case and report progress. It was a case of this sort that I had to make a dozen or more visits to find out her mental condition … the difficulty was whether she had become insane or whether she was just an imbecile. I concluded that she was imbecile. I had seen her six or seven times before she was certified’ (in 1908). The ‘statement of facts indicating insanity observed by myself’ in this certificate is certainly far from convincing. That also may explain Dr Carswell's answer already quoted.

In March 1907, when those in charge of the Salvation Army Home at Dundee found that Marjory Faichney was not to be a success with them, and was suffering from impetigo caused by dirty habits, she had been examined by Dr Buist of Dundee ere admission to the poorhouse. The Sheriff-Substitute is satisfied that he is a man of experience in mental cases and gave careful, albeit brief, examination in the matter. He, in answer to the question ‘Is applicant … lunatic, insane, idiot, or of unsound mind?‘certified ‘No.’ She was in Dundee Poorhouse Infirmary for about a month, and was apparently so little suspected to be insane, that she was never so much as taken to the observation ward. Dundee, of course, gave information to Stirling and Dunblane. The former wrote to Dundee regarding her state thus, ‘She is unfit to work, and has never been sent to employment being mentally deficient,’ … ‘and has never been forisfamiliated by being self-supporting.’ At the beginning of the following month, after the girl had been returned to Stirling and to her sister's house there, Dr A. C. Buist of Dunblane, who had known her as a child, saw her there and certified her as ‘well developed physically and in good bodily health. Mentally she is weak, but the weakness is not of such extent as to prevent her from doing ordinary unskilled labour. If allowed to remain idle she will most probably deteriorate in mind and morals.’

In the spring of 1908, after Dr Murray had made up his mind to certify Faichney to be a person ‘of unsound mind,’ it was resolved to obtain the sanction of the Board of Lunacy to board her out. The application bears that she is ‘occasionally violent or noisy, that she is not of uncleanly habits or offensive to decency, nor dangerous to others day or night, and that she is capable of helping the proposed guardian a little in household or other work,’ and the medical certificate bears that ‘she does not require either for her own welfare or the safety of the public to be placed in an asylum.’ Sanction having been got, an attempt was made to board her out at Causewayhead, near Stirling. She would not stay, but returned to her sister's house. Then after some months authority was obtained to put her in the lunatic wards of Linlithgow poorhouse, but the governor of that poorhouse returned her without a day's delay because she was suffering again from a skin disease which made her unsafe for the other patients. Then it was, in September 1908, that the inspector of Stirling, after, of course, a petition setting forth that she was a proper person for treatment in an asylum for the insane, and producing medical certificates to that effect, obtained warrant of the Sheriff to send her to Larbert Asylum, the asylum where Stirling lunatic paupers are boarded. It cannot be disputed by anyone that to treat her at Larbert is one very good and humane way of treating her, though the well-known specialist Dr Yellowlees thinks that the case was not bad enough for an asylum, and that he would not have certified her, ‘but some people would have certified her.’ There is strong medical opinion from others that she was wisely certified, and that the asylum is the proper place for her.

At all events certified she is, and it is not a question for the Court what is the best way of treating a particular lunatic. The motive certainly was the difficulty of otherwise disposing of the pauper. The effect in law of the certifying of the pauper, together with the strong medical evidence that she might have been certified at a far earlier date (including the time when she was twelve years old), is this, viz., the certification is proof that the girl was insane at its date. The certification is also an important piece of evidence that she was insane at an earlier date if the proof shows, as it is here held to show, that the mental condition has been practically the same from a period long anterior to the certification. The case is one of an undeveloped intellect, in which no definite change can be pointed to, but on the contrary in which the condition is shown not to have changed, and indeed in which no change could have taken place. The Sheriff-Substitute holds on the facts as a whole that the imbecility, which at the time of certification was great enough to warrant the certificates, has existed all along and would have warranted earlier certification.

So far as matter of law is involved in this opinion, the Sheriff-Substitute refers to the opinion of Lord Skerrington in the case of Inverkip v. Nairn, S.L.T. 1909, p. 99, aff. 47 S.L.R. 54, October 26, 1909.

That case is the more in point, because Lord Skerrington would have thought, apart from the specification, that the case of the Inverkip pauper was ruled by the decisions in such cases as Cassels already quoted. That is just what the Sheriff-Substitute would say of Marjory Faichney. He cannot express himself as wholly satisfied with the state of matters, because it is evident that the differentiation of one person from another in much the same mental condition is made a question not so much for the Court as for varying medical opinion as to what may be the best way to treat the case. But this Inverkip case seems entirely in point.

It is thought, therefore, that the Sheriff-Substitute must pronounce this pauper

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to have been lunatic and incapable of acquiring a residential settlement during the period within which Dunblane contends that such a settlement was acquired.”

The defenders appealed, and at the hearing the pursuers objected to the competency of the appeal, and argued—Under section 78 of the Lunacy (Scotland) Act 1857 (20 and 21 Vict. cap. 71) the Sheriff's judgment was final— Roxburgh, Berwick, and Selkirk District Board of Lunacy v. Parish Council of Selkirk, January 28, 1902, 4 F. 468, per Lord Young at p. 474, 39 S.L.R. 546. The account in the present case fell directly within the terms of section 78. It was not too late to state the objection— Hillhouse v. Walker, November 3, 1891, 19 R. 47, 29 S.L.R. 85; Shirra v. Robertson, June 7, 1873, 11 Macph. 660, 10 S.L.R. 445; Burns v. Waddell & Son, January 14, 1897, 24 R. 325, 34 S.L.R. 264.

Argued for the defenders—The appeal was competent. Section 78 provided a shorthand method for parishes which had maintained paupers of recovering their expenses, but it had nothing to do with the question of the liability of parishes inter se. This was not a summary cause within the definition of the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 3. It was an action with a declaratory conclusion to settle rights for a long period. The procedure followed here was not in accordance with a summary process.