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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.
Becoming a profession The nineteenth century witnessed the gradual move towards a partial merger of the orthodox professions making it easier for the legislature and the courts to identify the ‘responsible medical man’. The Medical Act 1858 fell short of uniting the different cadres of medical practitioners into a single, unified medical profession. What the Act achieved
convicted sixty-nine years later she might have faced the death penalty. In 1832, the first Anatomy Act provoked riots and arson. In 1858, Parliament, after decades of wrangling, passed the Medical Act 1858 which began the process of unifying the three orthodox medical professions (physicians, surgeons and apothecaries) and instituted a degree of state control of medical practice
’ of expert testimony and its impact on juries appears to have grown as the century progressed. Bell and Ibbetson single out the Medical Act 1858 as a crucial factor in the increasing success of the defendant doctors over the century. They suggest that the Act, in particular the creation of the Medical Register and the General Medical Council, effectively endorsed the competence of a registered
battlefield. There is an abundance of case-law in which the medical corporations challenged each other, and, from time to time, united to drive unlicensed healers out of business. 1.7 Regulation – wasted centuries? Long before the Medical Act 1858 established the General Medical Council (GMC), 15 Parliament and the Crown also engaged in regulating medical
men’ differed. Sir Edward Coke was dismissive of the physicians’ pretensions. Chief Justice Holt was more sympathetic. Only after the Medical Act 1858 when one partly unified medical profession emerged did English judges more or less uniformly begin to regard medical practitioners as fellow professionals. The presence of three sorts of orthodox doctors each seeking to undermine the others created
reorganisation of the medical profession caused by the Medical Act 1858, which also applied to Ireland, resulted in the exclusion of outsiders. The act did not specifically exclude women but with the emphasis now placed on standardisation of medical qualifications from universities, to which women had no access, it effectively prevented women from making it onto the Medical Register.36 One constant theme throughout the history of the medical profession ‘has been the effort to define who is a member and who is not’.37 The 1858 act attempted to unify the fractured state of the
give them a licence in midwifery and whether such a licence would be registerable under the Medical Act 1858.39 Pechey, born in Colchester, England, was the daughter of a Baptist minister, William Pechey, and his wife, Sarah. Pechey presumably expected that the College would be more likely to award women licences in midwifery than in medicine. In 1874, the council of the KQCPI informed Pechey that ‘women have been examined for a Licence in Midwifery by the King and Queen’s College of Physicians and that the College will be prepared to examine Women for a
’ concerns for the well-being of the King’s people. 77 The failed attempts at legal regulation of healing are, however, of considerable legal interest highlighting tensions between different objectives in regulation. The 1421 petition combined, as did the Medical Act 1858 over 400 years later, the grant of a monopoly to benefit licensed practitioners, coupled with a stated aim of protecting the patient
by local female midwives. The memory of female midwives as ecclesiastically licensed practitioners faded from view. The loss of status opened the door for medical men to reduce midwives to the role of handmaiden or decry them as dangerous sluts. While the Medical Act 1858 which effected partial unification of the three orthodox medical professions made no reference to female midwives, before and