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Asylums

ASYLUMS

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.

Management

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.

Liabilities

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.

cross-references

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

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asylums

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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Asylums

ASYLUMS

The first dictionary definition of "asylum" is "an institution for the care of people, especially those with physical or mental impairments, who require organized supervision or assistance"; the second is "a place offering protection and safety; a shelter." The first meaning highlights control, confinement, and supervision (under the rubric of "care"); the second is a synonym for "refuge," connoting freedom and security. The founders of American almshouses, lunatic asylums, and orphanages all faced the problem of how to justify the confinement of the impaired and the destitute with the ideals of freedom and equality that underpinned the Revolution and the birth of the new nation.

almshouses for the poor

Poverty was not uncommon in the colonies and the new nation. Many theologians in the eighteenth century believed that poverty, like mental illness, was simply a part of God's design; thus most of the needy were cared for in community households, where they were not stigmatized as a "problem" population. However, vagabonds or the "wandering poor" were made ineligible for all kinds of relief and were "warned out" of town, as the towns' responsibility for poverty extended only to the community within a town's boundaries.

A few communities did establish separate institutions to serve the needy. Many cities, primarily in the North, built almshouses throughout the eighteenth century. The earliest almshouses were often minimally renovated farmhouses. Residents, who wore no distinguishing clothing, had undergone some personal crisis or illness, or had faced insurmountable difficulties as a result of periodic wars, economic fluctuations, and especially the turn-ofthe-century transition to commercialized agriculture and early industrialization. Women consistently far outnumbered men: the special burdens associated with single motherhood accompanied by the paucity of economic opportunities for women made them especially vulnerable to all of the other social forces that induced downward mobility.

By the Jacksonian period, the almshouse had gained a dominant position in public policy toward the poor. In 1821 and 1824, Massachusetts and New York conducted formal studies of the causes of poverty and the condition of the poor; both studies recommended a formal network of almshouses where work, especially farm labor, would be compulsory for all the able-bodied. (A number of almshouses dating back to the late eighteenth century had made this a requirement of residency.) Other states followed suit: approximately sixty new almshouses were constructed from 1820 to 1840, and dozens of existing ones were refurbished and expanded. In keeping with the reform movements that led to the construction of penitentiaries and insane asylums, proponents of these new institutions stressed that poverty was not a divinely ordained condition, and that individuals were, under the right social conditions, perfectible. Accordingly, each of these institutions emphasized discipline, order, and cultural reprogramming that led inmates away from the slothful and vicious behavior (with drink at the top of the list) thought to be responsible for their degraded condition.

insane asylums

Throughout most of the eighteenth century, the mentally ill who could not be cared for at home were often housed in almshouses or jails and were sometimes chained in attics or cellars if they became unmanageable. But these "mad" inmates were increasingly viewed as a bad influence on—or worse, a physical threat to—the virtuous or reformable sane inmates. Eventually, mental health crusaders like Dorothea Dix (1802–1887) insisted that the poor treatment and unmet medical needs of the mentally ill in the almshouses made separate institutions for the insane a national imperative. The rather undifferentiated population of the almshouse inmates began to be sorted out, and from the early 1830s onward the insane were systematically removed to the new state-run institutions that specialized in treatment of the mentally ill. The roots of this practice reach back to the eighteenth century, both in Europe and America.

Insanity, like poverty, was not considered a "social problem" through much of the 1700s. Those whose behavior was considered sufficiently odd often came under the care of doctors, who might bleed them or subject them to a regime of purgatives or laxatives; but these procedures were typically conducted in the home, unless the patient was violent enough to warrant confinement elsewhere. In Europe, however, a new medical paradigm known as "moral treatment" took hold. This system purported to restore sufferers to reason and light by immersing them in a carefully controlled environment where they would be under the supervision of a physician and where all perverting influences were expelled. The leading exponent of this movement, the French physician and asylum-keeper Philippe Pinel (1745–1826), claimed that his new field of asylum medicine was a logical outgrowth of the French Revolution, in that it guaranteed all the mentally ill the right to humane treatment rather than neglect or abuse.

The first American hospital established exclusively for the insane was the Virginia Eastern Lunatic Asylum, founded in Williamsburg in 1770 to house thirty-six patients. Pennsylvania's experiment, however, was better known. In 1751, under a petition of civic leaders including Benjamin Franklin, the newly formed Pennsylvania Hospital began receiving a large number of vagrant, and violent, "lunatics." In the first decades, patients were often restrained by chains and straitjackets; but, at the urging of the physician Benjamin Rush, they were moved in 1792 to a separate wing, where they could be cared for more effectively and humanely. Rush, though, still favored "heroic" medical treatments—bloodletting, purging, physical restraint, chastising, and stimulation of terror as shock therapy—over the holistic "moral" ones being developed in Europe.

In the early nineteenth century, a number of religious and charitable organizations founded private asylums, generally run on the moral treatment paradigm, that catered primarily to elite populations who were afflicted with insanity. (Each did, however, have provisions for caring for a certain number of indigent patients.) In such asylums as McLean (Massachusetts, 1818), Bloomingdale (New York, 1821), and Hartford Retreat (Connecticut, 1822), the moral treatment took hold, with reportedly spectacular effects. Physicians claimed cure rates as high as 90 percent; this, along with the vigorous campaigning of Dix and others, persuaded many state legislatures to fund state institutions. Beginning with Massachusetts in 1833, almost every Northern state allotted major funding for elaborate institutions to care for patients from all social ranks. However, the cure rate was later exposed as exaggerated, and the actual treatment of patients was considerably more harrowing than the stated ideal.

orphanages

Unlike insane asylums and almshouses, throughout the eighteenth and nineteenth centuries orphanages remained strongly associated with private and religious organizations. And whereas the other institutions were managed exclusively by men, women tended to run orphan asylums, where they were expected to take on mothering roles with their young wards. But as with the response to poverty and insanity, the relief of large numbers of bereft children took place within institutional settings only after the 1830s. In the colonies, two orphan asylums, one Lutheran and one Methodist, opened in what is today Georgia in 1738. The first to be publicly managed was established in Charleston, South Carolina, in 1790, but by 1830, when approximately fifteen orphanages had been established, the overwhelming majority was still religiously oriented. Not all of the children were strictly parentless: some had one living parent, and some had been abandoned.

In orphanages, as in other types of asylums, managers emphasized the importance of developing daily routines and rudimentary training in how to live as productive, law-abiding citizens. Several orphanages, including the Boston Female Asylum (established 1800), provided more regular and rigorous schooling than would have been available to poor children on the outside. There, school was held six hours a day, six days a week, and featured lessons in arithmetic, reading, writing, sewing and domestic skills; Sundays were given to religious worship. Play time, however, was not considered important to development.

Almshouses and insane asylums suffered a downward trajectory through the nineteenth century. These institutions deteriorated as their utopian mystique was eroded and the public lost its faith in them. Conditions at orphanages, by contrast, tended to improve.

See alsoAlcohol Consumption; Childhood and Adolescence; Disability; Hospitals; Mental Illness; Orphans and Orphanages; Penitentiaries; Poverty; Reform, Social .

bibliography

Gamwell, Lynn, and Nancy Tomes. Madness in America: Cultural and Medical Perceptions of Mental Illness before 1914. Ithaca, N.Y.: Cornell University Press, 1995.

Hacsi, Timothy A. Second Home: Orphan Asylums and Poor Families in America. Cambridge, Mass.: Harvard University Press, 1997.

Katz, Michael B. In the Shadow of the Poorhouse: A Social History of Welfare in America. Rev. ed. New York: Basic Books, 1996.

Rothman, David J. The Discovery of the Asylum: Social Order and Disorder in the New Republic. Rev. ed. Boston: Little, Brown, 1990.

Smith, Billy G., ed. Down and Out in Early America. University Park: Pennsylvania State University Press, 2004.

Benjamin Reiss

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