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Establishments that exist for the aid and protection of individuals in need of assistance due to disability, such as insane persons, those who are physically handicapped, or persons who are unable to properly care for themselves, such as orphans.

The term asylum has been used, in constitutional and legislative provisions, to encompass all institutions that are established and supported by the general public.

An insane asylum is one in which custody and care is provided for people with mental problems. An orphanage is an asylum set up as a shelter or refuge for infants and children who do not have parents or guardians.

Establishment and Maintenance

In the absence of constitutional restrictions, the state is permitted to fulfill its obligation to aid or support individuals in need of care by contributions to care facilities established or maintained by political subdivisions and private charity. In addition, the state may inaugurate a state asylum, delegating the management responsibility thereof to a private corporation. Some authorities view contributions to asylums of religious organizations or private enterprises as violative of constitutional prohibitions of government aid to parochial institutions or individuals. Express exceptions can be made by state statute or constitution for the payment of funds for designated purposes to specific types of asylums. In situations that are embraced by such exceptions, the contribution that the state makes to the maintenance of the asylum is not regarded as a charity but as part of the state's duty to aid its citizens who cannot do so themselves.

Public Asylums Ownership and Status

An asylum founded and supported by the state has the status of a public institution. The state has the true ownership of the property that a state asylum occupies, and the character of the state's interest in such property is dependent upon the terms of the deed or contract under which it is held for the institution.

When a county conveys property to a board of directors of an insane asylum acting as trustees, title is not vested in the state to the extent that the power to reconvey the land to the county is restricted. In a situation in which property has been conveyed for a particular purpose connected to the operation of the asylum, it has been held that the trustees are permitted to reconvey the property to the county for the establishment of a general hospital.

Location and Support When no constitutional provision prescribing the location of public institutions exists, the state may designate a location or arrange for a place to be found by a specially appointed committee or commission.

A state asylum may be funded either by general state taxation or through an allocation of a portion or all of the costs among political subdivisions or to the inmates of the asylum.

Regulation Under the police power of the state, the establishment and regulation of private asylums are subject to the state legislative authority. Such powers may be delegated to political subdivisions and administrative agencies. If legislative authority is delegated in such situations, guidelines and standards for regulatory enforcement must be present.

In order for a regulation to be valid, it must be reasonable, applied uniformly, and it must not infringe upon constitutional rights. A state or political subdivision cannot proscribe the lawful operation of an asylum or care facility or create or enforce unreasonable or arbitrary requirements regarding its construction or physical location. Similarly, it cannot make capricious requirements relating to the classification and nature of individuals to be admitted. Regulations and practices must comply with constitutional and statutory provisions.

The governing board of an asylum or institutional care facility is empowered to create all necessary rules and bylaws and is responsible for its policies and general administration. The courts will neither prescribe rules nor alter those created by the authorities, unless they are unreasonable or inappropriate.

Investigation and Inspection The legislature has the exclusive power to order an investigation of the management of an asylum or care facility. Private individuals may not conduct an investigation. When an investigation is initiated, the institution's governing board has the power to set forth regulations regarding relations with employees and patients and access to the

records. A nursing home operator must make records kept pursuant to a public health statute available for inspection by authorized public officials. In addition, a private facility can be required to turn over annual fiscal reports to a regulatory agency.

Statutory requirements for the safety of individuals in institutions are imposed and must be observed. Similarly, standards concerning the type of personnel needed to care for the patients are usually set forth, but they must not be unreasonable.

Licenses Ordinarily, a license is required to operate an asylum or institutional care facility in order to ensure that minimal health and safety requirements imposed by law are observed. When a license is necessary, operation of a facility without one may be enjoined and, under certain statutes, a contract made by an unlicensed person is void, which would bar recovery for necessaries provided for individuals. The procedure for procuring a license is governed by statute, and the state licensing authorities have the discretion concerning whether it should be granted. When there is a final decision, determinations in licensing proceedings may be subject to judicial review. The proceedings on judicial review are generally regulated by statutory provisions that limit the proceedings to those initiated by aggrieved individuals.

Under some statutes, before an institutional care facility can be built, a certificate of need, which establishes approval of its construction by a public agency, is required.

Officers and Employees

The rules that generally apply to public service employees govern the status of officers and employees of institutions. Statutory provisions may provide for the termination of such officers and employees.

Inmates, Patients, and Residents

Statutory provisions, administrative regulations, and discretion of its administrator govern the admission of inmates or patients to a public institution. When a public asylum is founded for the reception of a specific class of individuals, anyone in the designated class may be admitted.

A constitutional provision that requires the advancement and support of certain specified institutions does not mandate that the state incur the total cost of maintaining institutionalized individuals. The expedience of soliciting repayment from responsible people for the expense of care, support, and maintenance of a patient cannot be based exclusively upon whether the commitment is voluntary or involuntary. In addition, recovery might be permitted for services actually rendered.

The individual in charge of an asylum that stands in loco parentis to infants upon their admission has custody of the children who are committed to its care. Unless otherwise prohibited by statute, qualified people may examine the records of children in private institutions when so authorized by its administrators. When a statute exists that guarantees the adult residents of proprietary adult homes the right to manage their own financial affairs, their handling of such matters cannot be subject to judicial challenge. An institution may be mandated to meet the individual needs of its patients under rules that monitor the operation of private care facilities for the purpose of the medicaid program.

Appropriate regulations may govern the visitation rights of individuals in an asylum.

An individual may be dismissed from the institution for conduct proscribed by the bylaws under penalty of expulsion, provided the person is first afforded notice and an opportunity to be heard.

Contracts for Care and Occupancy

The admission of an individual to a public institution for care can be the subject of a contract between the patient and the institution concerning the transfer of property to the institution. Even without an express agreement, however, the circumstances may bring about a quasi contract to provide for services rendered.

An individual may not rescind an occupancy agreement and regain an admission fee without proof of a breach of contract by the institution.


The management of public institutions is usually entrusted to specific governing bodies or officers. The appropriate body can hire employees to operate the asylum but cannot relinquish its management responsibilities. Physicians who wish to visit patients in private nursing homes can be excluded. If an institution does not provide reasons at the time of the exclusion, it does not preclude the institution from excluding the physician, provided that valid reasons exist and are communicated upon request.

Generally, the governing body of an asylum has the power to decide how funds appropriated for its support shall be spent, in the absence of contrary legislative provision. Funds appropriated by a legislature for specific purposes cannot, however, be diverted, and the governing body of the asylum does not have the power to compel the state to provide funding for services other than those for which the money was appropriated. Similarly, they are not empowered to borrow money or incur debts beyond allotments made for the support of institutions.

It is proper procedure to make a provision that an asylum may only accept as many inmates for admission as the facilities can adequately accommodate.

An institution may not initiate a visitation plan that limits a patient's right to allocate his or her visiting time among particular people, unless such limitation bears a rational relationship to the patient's treatment or security.


An asylum or institutional care facility has the obligation to exercise reasonable care toward patients and can be held liable for a breach of this duty of care. The care taken toward inmates should be in the light of their mental and physical condition.

Recovery for injuries precipitated by an institution's negligence can be barred or limited by the contributory negligence of the injured party. The defense of contributory negligence cannot, however, be used when an individual is physically or mentally incapable of self-care.

further readings

Goffman, Erving. 1970. Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. Chicago, Aldine.

Jones, Kathleen. 1993. Asylums and After: Revised History of the Mental Health Services from the Early 18th Century to the 1990s. London: Athlone.


Disability Discrimination; Establishment Clause; Health Care Law; Patients' Rights.

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asylums for the insane had medieval origins in Britain, with London's Bethlem Hospital (Bedlam) the most famous. Its shortened name passed into the language in association with foolishness, loss of control, and the abdication of reason and humanity, as befitted a prevailing frame of mind in which madness was equated with descent into brutishness and kept in check with chains and whips. The patients in Bedlam were a spectacle for curious visitors in the 17th and 18th cents. During the latter century a private madhouse system developed, as medical entrepreneurs made claims for cure as well as management and security. At the turn of the 18th and 19th cents. reformers such as Pinel in France began to claim that asylums could be turned into therapeutic environments, in which insanity could be cured by seclusion from external stresses and a system of moral management could lead patients back into recognizing the need for acceptable, self-disciplined behaviour. This line was taken by the Tuke family at their York Retreat, an asylum for quakers which became a model for later developments. An Act in 1808 empowered counties to set up asylums for pauper lunatics with a view to possible cure as well as custody. Such asylums gradually spread, and the emergence of the ‘non-restraint’ system under practitioners like John Conolly provided an additional legitimacy, as locks and chains were struck off and a humane regime based on an appeal to reason supposedly took over. In 1845 legislation required the general establishment of pauper asylums, and commissioners in lunacy were established to inspect, remedy abuses, prescribe best practice, and deal with alleged cases of wrongful confinement, when patients were certified and confined at the behest of relatives who would benefit financially from their incarceration. Charles Reade's mid-Victorian novel Hard Cash dealt forcefully with this issue; but the promise of cure made asylums seem more legitimate and less frightening even as the pauper asylums became less able to live up to the reformers' promises. As they filled up with incurable patients and were unable to attract or train staff with appropriate attitudes, patient–staff ratios increased, pauper asylums reverted to custodial control rather than cure, and doctors' pretensions to understanding and treating insanity failed to develop beyond asylum management. Huge ‘museums of madness’ proliferated in the late 19th cent., and silted up with long-term inmates. The abuses of the system came to seem to outweigh its humanitarian and therapeutic pretensions, and physical as well as moral restraints were reintroduced. The emergent psychiatric profession had used ‘moral treatment’ to enhance its credibility, but failed to deliver cures in significant numbers. The sheer scale of Victorian investment in the system, and the administrative power of the psychiatrists, kept it in being until the last quarter of the 20th cent., when a fashion for decarceration and the liberation of inmates led to replacement with so-called care in the community, whose limitations were quickly made apparent in the absence of appropriate funding. With all its defects, the asylum was more than (as one critic suggested) ‘a convenient place to get rid of inconvenient people’: it was a refuge for those who could not cope, and the failure of alternative systems showed that it had its virtues as well as its drawbacks for patients, as well as for those who sought to shape and sanitize the social order through the promotion of custodial care.

John K. Walton

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