Chapter 4 focuses on the road to the Medical Act 1858 which began the process of unification of the professions. It will be shown how the Act fell short of uniting the different orders of medical practitioners into a single medical profession. What the Act achieved by establishing the Medical Register was a means to identify practitioners recognised by the State as qualified to practise and entitled to be entered onto the register. The chapter reviews some of the many conflicting proposals for medical reform advanced by different groups. The first outcome of campaigns for reform, the Apothecaries Act 1815, is seen to be a damp squib. Sixteen Bills presented to Parliament from 1830 to 1858 failed. Noting that the only matter on which the orthodox agreed remained their abomination of unqualified healers all of whom the orthodox labelled as quacks, the chapter goes on to explore the use of the courts and prosecutions for manslaughter in attempts to scare unlicensed healers out of business. It is shown that the judges rejected pleas to privilege the licensed practitioner. Finally, the Medical Act 1858 and its lukewarm reception is assessed. The omission of measures to criminalise all unlicensed healers is explained. The Act marked a gradual move towards a partial merger of the orthodox professions making it easier for the courts to identify ‘responsible medical opinion’. Medicine can be seen to be a profession acquiring a stronger voice in debates about laws relating to matters such as abortion and anatomy.
Chapter 10 considers aspects of English law relating to the human corpse. The need for bodies and their parts long precedes the advent of organ transplants. Human dissection was crucial to understanding the human body and thus developing medicine. The first part of the chapter charts measures to meet the gap between supply and demand, including bodysnatching, robbing the grave of recently deceased persons and selling the corpse to the surgeons. The inadequacy of the law and the shaky authority of the so-called ‘no property in a corpse rule’ is exposed. The second part focuses on the introduction of legislation expressly designed to regulate anatomy, the Anatomy Act 1832 which triggered riots and the burning of an anatomy school. The process of law-making which culminated in the 1832 Act is shown to mark a radically increased respect on the part of legislators to biomedical science, in sharp difference to the more sceptical approach of the judges. And as with abortion laws, medical practitioners acquired a strong voice in debates on the law, a voice not limited to the science, but also addressing the moral and social issues.
Chapter 6 explores the influence of Christianity in shaping secular laws relating to moral dilemmas in medicine dilemmas, which might now be described as bioethical questions. What is perceived to be the persistent influence of Christian theology in shaping the law on matters of life and death is decried in a country where fewer and fewer people practise that faith. The common law has long addressed debates about the nature of human life, beginning and ending human lives. The chapter will contend that while Christian tradition undoubtedly played a part in forming English law relating to the protection and value of human life, religion was only one factor, and maybe not the principal factor, in the formation of legal principles applicable to the value of life. The common law is seen to display a strong theme of pragmatism and a focus on the maintenance of the King’s Peace. The chapter addresses euthanasia, suicide and what makes an entity legally human.
Law and healing is a colourful and critical account of the longstanding ‘marriage’ between two fundamental pillars of human society, law and medicine. The book addresses medico-legal history, exploring aspects of English law’s fascinating and sometimes acrimonious relationship with healing and healers. It challenges assumptions that medical law is new and that when law engaged with medicine, judges deferred to the ‘medical man’. It traces the regulation of healing from the dominance of the Church, and goes on to examine how the battles between different groups of lay ‘doctors’, physicians, surgeons and apothecaries were fought out in the law courts, the Royal Court and Parliament. Malpractice litigation and predictions of malpractice crises are shown to date back to the fourteenth century. Evidence of judicial deference is scant until late in the nineteenth century. Medical law today addresses moral dilemmas arising in medical practice and biomedical science. Considering historical perceptions of the human body from the womb to the grave, this work identifies themes persisting through medico-legal history and how history repeats itself. The book assesses both how English law responded to changes in ‘scientific’ understanding of bodies and how ‘science’, or what was thought to be science, influenced law. Bizarre theories about biology are seen to buttress laws of primogeniture and legal incapacities imposed on married women. The book considers how in the nineteenth century medical practitioners gradually acquired a strong voice in law-making on morals as much as medical practice.
Chapter 2 addresses the presence of a third party in the marriage of law and healing, the Church, exploring the relationship between three key actors in the formulation of law relating to healing, the Church, Parliament and medical practitioners. The chapter outlines how, before the Reformation, the Church in Rome enacted rules in canon law regulating healers. It identifies the enduring influence of canon law on the organisation and regulation of medical practice. The prohibition on practising surgery imposed on most clerics by the Lateran Council 1215 is discussed as a prime example of such influence, driving surgery out of the monasteries and contributing to the development of the tripartite division of physicians, surgeons and apothecaries. The role of the Church as the principal provider of healing free of charge in the monastic hospitals is analysed. As more laymen began to practise, and the monastic hospitals declined, pressure to reform regulation grew. An attempt to establish a nationwide system enforced by the King’s officers, the Sheriffs, failed in the chaos following the death of Henry V. In 1511 the Crown intervened to create a national system to regulate physic and surgery endorsed by Parliament in the Act ‘for the Appointment of Physicians and Surgeons’. The Church did not disappear from engagement with healing – it became a regulator. The 1511 Act entrusted implementation of the licensing process to the bishops.
Chapter 5 looks at medical litigation. Clinical negligence litigation often gives rise to acrimony between lawyers and doctors. Doctors regularly predict a ‘malpractice crisis’. Patients complain that the systems for redressing harm caused by medical negligence are inadequate. Chapter 5 shows that these concerns are not new. As J B Post noted, the ‘medieval medical practitioner, like his fellows of every age, was vulnerable to accusations of negligence’. The fundamental principles relating to liability for medical negligence are seen to have deep roots. By way of illustration, a number of cases stretching back to 1329 are examined. It will be seen that at least before the end of the nineteenth century there is little evidence of judicial deference to medical opinion. The surgeon treating human patients was treated no differently to the farrier (horse doctor). Such expert evidence from medical practitioners as was available was accorded no special consideration, as was to be the case in the Bolam era. Chapter 5 explores the impact of developments in ‘scientific’ medicine, contemporaneous developments in the general law relating to expert testimony and the influence of the Medical Act 1858.
Chapter 1 explains why we should bother, setting out the case for the importance of medico-legal history. It challenges assumptions that medical law is new, and that, when law did engage with medicine, judges showed blind deference to the ‘medical man’. The chapter argues that, to the contrary, medical law has a rich history stretching back several centuries. The law courts, the Crown and Parliament were all regularly engaged with medicine. Setting the scene for the following chapters, Chapter 1 sketches out the organisation of health care from circa the sixteenth to the start of the twentieth centuries. It demonstrates that demand for health care has always been high. Our ancestors were as anxious about their health as we are and had access to a range of diverse healers. Doctors look very different following the tripartite division of medicine common in Continental Europe and divided into the three orders of physicians, surgeons and apothecaries, referred to in this work as orthodox practitioners. Each of the orthodox had its own medical corporation and the three orthodox groups were often at odds resorting to the courts to fight their internecine battles. The only matter on which the orthodox agreed was their loathing of the many traditional healers and again the law courts were the fora where the dispute was played out. The impact of the Medical Act 1858 and the contemporaneous development of biomedical science based on laboratory investigation, rigorous testing and assessment of results are noted.
Chapter 9 addresses English law and the fetus. While the history of abortion law has attracted more attention from modern medical lawyers than virtually any other topic in medico-legal history, that history itself is as bitterly disputed as the fundamental questions it addresses. Fetal status is not only pertinent to abortion law, and the chapter considers the protection afforded to the not yet born child by the right of a pregnant woman to ’plead her belly’ and the right of a child in utero at the time of their father’s death to the same rights of succession as their born siblings. The first statute criminalising abortion was passed in 1803 (Lord Ellenborough’s Act). After assessing available case law and the writings of English jurists, the chapter establishes that contrary to the claims made by US historian Cyril Means, abortion was a common law crime, albeit one with uncertain boundaries. The series of Acts of Parliament passed from 1803 to 1861 is evaluated and the increasingly draconian approach to abortion assessed. The central theme of this chapter is the role played by medicine in the evolution of the law. Medical practitioners are seen to be close to invisible in the common law era. By 1861 they had become a powerful lobby for stringent legislation and seized control of access to abortion. Moreover, medical practitioners such as Thomas Percival advanced opinions about morality as much as medicine. Doctors it seemed were considered to know best.
Chapter 8 places women centre stage illustrating how belief that women were weak and dangerous united medical practitioners and law makers. Medicine, in the sense of theories of the body and sickness, was deployed to make law and justify exclusion of women from public life. One group of women escaped exclusion and the often-forgotten story of ecclesiastical licensing of midwives in the sixteenth and seventeenth centuries is evaluated, highlighting the public duties of the midwife as a guardian of morals as well as the healer caring for birthing women. The sudden demise of ecclesiastical regulation and the take-over of childbirth by the ‘medical men’ is assessed. The imagery of women as both weak and dangerous is shown to buttress the many legal incapacities imposed on women by the common law. Similarly, bizarre theories about reproduction also influenced English law. The chapter demonstrates the high value placed on bloodlines and lineage, what would today be described as genetic identity. It explores the impact of ‘scientific’ (mis)understandings of reproduction in late medieval and early modern England on the development of the law and in particular male primogeniture. The close links between questions of property and reproduction will be analysed and entrenched antipathy to single motherhood examined. The historical themes of emphasis on genetic relatedness, wariness of certain kinds of parenthood and questions of access to regulation of reproduction will be shown to be instructive to modern debates on reproductive medicine and the law.
Chapter 3 addresses the tripartite division of labour and the regulation of physicians, surgeons and apothecaries, from c. 1511–1858. It focuses on the battles between the three groups of orthodox practitioners, battles often fought out in the law courts. The Crown, Parliament and the courts were all involved in addressing the claims of the medical corporations to regulate their own members, and in the case of the College of Physicians to regulate the whole domain of medicine. The extensive powers of self-regulation granted to the College are considered, as is the anomaly that the College’s writ ran only in London and its environs. It highlights the role of the criminal process regulating healers and examines the series of challenges to the ‘mighty’ College. The chapter addresses the physicians’ unsuccessful efforts to enhance their social status, to be regarded as gentlemen, the equal of lawyers and the clergymen. Nor for the most part did the judges accord deference to the medical men. Sir Edward Coke declared that any university-educated judge could determine if a medical case had been handled correctly. The chapter charts the skirmishes between physicians, surgeons and apothecaries evaluating the impact of dramatic conflict between physicians and apothecaries in Rose v College of Physicians heard in 1703. Finally, Chapter 3 outlines how in the light of developments in surgery the tripartite division made no sense, regulation in the provinces had more or less broken down entirely and pressure for reform grew.