An Act to Consolidate and Amend the Law Relating to the Insane, 1878 (42 Victoria Act No. 7) commenced operation on 1 March, 1879 and the Lunacy Jurisdiction was established. In the Jurisdiction in Lunacy (which was exercised as a separate jurisdiction by the Chief Judge in Equity), the Court had the authority to determine the soundness of mind of a person, and therefore the person's capacity to manage his own affairs.
A further petition was required to be lodged if a person previously found to be a lunatic claimed to have recovered. Similarly one Judge or the Full Court could consider the petition and its affidavits. If the Court found in favour of the person he could immediately be discharged from the custody of the asylum and his property regained. The Full Court or any of its Judges could authorise the discharge of a person held without just cause in an asylum.
The Court or any one of its Judges could require a trial before a jury of four or 12 persons to determine the sanity of a citizen. Such a hearing could be held publicly or privately and was conducted according to the contemporary procedures of the Court.
The Act showed the development of the terminology of the mentally ill by distinguishing between 'Insane Persons' - those who had been found to be insane, were not able to manage their affairs, and 'insane patients' who where those housed in hospitals and other institutions for the care of the insane.
Under the Act the office of Master in Lunacy was established and eventually an office of support staff evolved. The Master was responsible for the care of the mentally ill and the management of their property and other affairs. The Master in Lunacy himself examined the patient and reported to the Court which in turn appointed a guardian or a receiver for the person’s property. In effect the Protective Commissioner carried out the administration and management of properties.
Through the system of Master in Lunacy Petitions in the Supreme Court persons with property could be deemed insane without the need for incarceration. The number of petitions, however, was small. Between 1878 and 1941 only 73 people brought under the jurisdiction of the Supreme Court were not patients in a mental hospital. (1)
Under the 1843 and 1879 Lunacy Acts it was not illness that ensured committal but the breakdown of alternative forms of care and control. If care at home (by families or others) or private nursing was available, and the patient was not a danger to other persons, committal was not required. Social factors such as the availability of family support, the willingness of police to arrest and the impatience of locals if disturbances occurred were factors in determining whether a person was institutionalised.(2)
An Act to Amend the Lunacy Act, 1881 [45 Victoria, Act no. 16] dealt mainly with procedures for prisoners found to be insane and rules and procedures for the admission of patients to hospitals. The original Act was further amended by he Lunacy Act (further amendment) Act, 1893 (56 Victoria, Act no 23) which set down more clearly the duties of the Master in Lunacy, provided for a fee for the administration of patient’s estates and addressed the problem of immigration of mental patients.
With federation on the horizon there was an attempt to achieve uniform mental health legislation in the colonies. The Australian Lunacy Convention Act, 1894 [58 Victoria, Act No. 5], allowed for the treatment of patients in adjoining colonies. This enabled insane persons in the remote parts of the Colony to be treated in other colonies if facilities were closer.
The Lunacy Act of 1879 and its amendments were consolidated into the Lunacy Act, 1898. (Act No, 45, 1898). This remained the authority for the administration of the Lunacy Jurisdiction for more than half a century although the Court’s responsibilities were increased to include the administration of the estates of Inebriates by An Act to provide for the care, control and treatment of Inebriates, 1900 [Act No. 32, 1900].
The Damages (Infants and Persons of Unsound Mind) Act,1929 (Act No. 25, 1929) regulated actions in the Supreme Court or any district court where damages were claimed on behalf of an infant injured by a person of unsound mind. Payment of any court-sanctioned moneys was placed with the Public Trustee to be dealt with for the benefit of the plaintiff.
The Act which was based on the Common Law jurisdiction for the protection of infants and persons of unsound mind is termed the parens patriae jurisdiction. In substance, the English courts, having been devolved from the Sovereign who, in feudal times, had a particular responsibility to less powerful and able members of the community exercised this jurisdiction. The jurisdiction eventually came to be exercised by the Lord Chancellor and the Courts of Chancery and was inherited by the superior courts of England's former colonies including the United States of America, Canada, Australia and New Zealand. In the 19th and early part of the 20th centuries, the parens patriae jurisdiction was used almost exclusively by the Courts for the protection of the property of minors. (3)
The Lunacy and Inebriates (Commonwealth Ratification) Act, 1937 (Act No. 37, 1937) constituted an agreement between the New South Wales Minister for Health and the Commonwealth Minister for the Interior allowing for persons declared as insane or classed as inebriates to be transferred (in custody) from the Territory for the Seat of Government of the Commonwealth to the State of New South Wales.
The Lunacy Act, 1898 (Act No. 45, 1898) was replaced by the Mental Health Act, 1958 [Act No. 45, 1958] which established the Protective Division of the Supreme Court of New South Wales to replace the former Lunacy Jurisdiction. The Chief Judge in Equity heard cases in chambers or in Court as the situation required, or they were considered by the Master in the Protective Jurisdiction. There was provision for the empanelment of a jury of four or twelve persons where relevant. The Act set up a system for determining whether the person was capable of managing his own affairs, and if not the Master in the Protective Jurisdiction took responsibility for managing his estate and where possible diverting money from his estate for the maintenance of the person and his dependants. Similarly a court hearing was required when a person claimed to have recovered from mental illness. The Act also gave the Court protective powers over those who became incapable 'through mental infirmity arising from disease or age' and who may not therefore be mentally ill.
The Supreme Court Act of 1970 [Act. No. 52, 1970] altered the title of the Protective Jurisdiction to the Protective Division. The business assigned to the Protective Division includes proceedings
a) in the Court in its jurisdiction in lunacy
b) under Division 2 of the Conveyancing Act, (Act No. 6) 1919 (which relates to powers of attorney)
c) under section 281 of the Mental Health Act, (Act No. 9) 1990 (which relates to appeals from the Tribunal)
d) under section 285 of that Act (which section relates to discharge etc. of a patient)
e) under section 174 of that Act (which section relates to psychosurgery patients)
f) for any order which the Court might make in proceedings for a writ of habeas corpus ad subjiciendum in respect of a forensic patient
g) under the Mental Health (Disability Services and Guardianship) Act, (Act No. 260) 1987
(1) Garton, Stephen Medicine and Madness: A Social History of Insanity in New South Wales 1880-1940, New South Wales University Press, Kensington, 1988, pp. 109-110.
(2) Ibid. p. 110.
(3) Nicholson, Alastair, Harrison, Margaret and Sandor, Danny, ‘The Role Of The Family Court In Medical Procedure Cases’, Australian Human Rights Information Centre, Australian Journal of Human Rights Vol 2 No 2 http://www.austlii.edu.au/do/disp.pl/au/other/ahric/Secondary/ajhr/V2N2/....