1. DOCUMENTARY

Under this head are included Medical Certificates, Written Opinions, Medical Reports, and Dying Declarations.

Medical Certificates.—Certificates generally refer to death, to vaccination, to notification of infectious and industrial diseases, and in districts which have adopted it, the notification of births; to the state of health of an individual, &c. For those which have respect to the health or to the illness of an individual there is no particular legal form, as a certificate is merely a simple statement of a fact. The only essential condition is that it contains the exact truth, and any departure from this will entail heavy penalties. A statement signed by a registered medical practitioner, distinctly describing the condition of A or B, is all that is necessary as far as the law in England is concerned. In Scotland the law is somewhat different, for “A certificate of bad health by a physician or surgeon must bear to be on soul and conscience.” ... “In cases of homicide, and other crimes against the person, medical certificates produced respecting the nature of the injuries must be verified on oath by the medical persons who granted them” (Dictionary Scot. Law). In Scotland, the omission of the words “on soul and conscience” invalidates a certificate.

Certificates of death, of vaccination, of notification of infectious diseases, tuberculosis, industrial diseases, and births, and of insanity can be procured already printed in the forms prescribed by the law.

Certificates of the Cause of Death.—A medical practitioner who has been in attendance during the last illness of a person is legally bound to give a certificate stating, “to the best of his knowledge and belief, the cause of death.” If he be unaware of the cause of death, or have reason to believe that death was not due to natural causes, or the result of violence, he may refuse the certificate. In such a case it is customary and desirable for the medical man to notify the Coroner of the circumstance as soon as possible. If he have no reasonable cause to prevent him supplying the certificate, he is liable to a penalty not exceeding forty shillings. In England and Ireland it is given to a relative of the deceased or legally authorised person, who must deliver it to the Registrar. In Scotland the doctor sends it to the Registrar direct. Not more than one certificate should be given. No fee is chargeable. The information on the certificate should be as clear, complete, and accurate as possible.

Notification of Births.—When the authorities of any district have adopted the Notification of Births Act of 1907, it is the duty of any person who has been in attendance on the mother at the time, or within six hours after the birth, to give notice of the birth in writing to the Medical Officer of Health of the district in which the child is born. The necessary certificate must be filled in and posted to the Medical Officer of Health within thirty-six hours of the time of birth. The certificate applies to any child dead or alive born after the twenty-eighth week of pregnancy. Should the relatives of, or other attendant upon the mother, fail to notify the birth, it is the duty of the medical attendant to do so, failing which he may be fined not exceeding twenty shillings.

Notification of Infectious Diseases.—By the Act of Parliament 1889, every medical practitioner attending on or called in to visit the patient, shall forthwith, on becoming aware that the patient is suffering from an infectious disease to which the Act applies, send to the Medical Officer of Health of the district a certificate stating the name of the patient, the situation of the building, and the infectious disease from which in the opinion of such medical practitioner the patient is suffering.

The notifiable diseases are: smallpox, cholera, diphtheria, membranous croup, erysipelas, scarlatina or scarlet fever, typhus, typhoid, enteric, relapsing, continued and puerperal fever.

By consent of the Local Government Board the Health Authorities may add other diseases as occasion may require for a time or permanently. Of these due notice is given to medical men. Tuberculosis and ophthalmia neonatorum are now notifiable. The fee for the certificate in private practice is 2s. 6d., if in a public institution, 1s. Failure to certify renders the medical man liable to a penalty of 40s.

Notification of Tuberculosis.—As mentioned previously, tuberculosis is now a disease notification of which is compulsory. Special forms are provided for the purpose.

Notification of Industrial Diseases.—Under the Factory and Workshop Act, 1901, every case of lead, phosphorus, arsenical, or mercurial poisoning, or anthrax, if contracted in a factory or workshop must be notified by the practitioner in attendance on the case. The certificate must be sent to the Chief Inspector of Factories at the Home Office, London. The fee for notification is 2s. 6d. Other diseases may be added to the list by special order of the Home Office.

Written Opinions.—These generally refer to civil questions.

The Medical Report.—A Report is a document given in obedience to a demand by the public authorities in Scotland, and has reference chiefly to criminal cases. Medical Reports are sworn to as true by those who draw them up. According to Alison, it is not a sufficient objection that a Medical Report was made up at an interval after the occurrence of the circumstances to which it refers. The same high authority also states that should the writer of a Medical Report die before the trial, his Report may be used in evidence,—this may be doubted.

The necessity for simplicity in the arrangement and in the wording of their Reports cannot be too strongly urged on medical men. “A medical witness will do well to remember, also, that copies of his Report and depositions, either before a coroner or a magistrate, are usually placed in the hands of counsel as well as of the Court; and that his evidence, as it is given at the trial, is compared word for word with that which has already been put on record.” All hearsay statements and irrelevant matter should not be inserted in a Report; and the reporter should be particularly careful not to add any comments to his simple narration of facts. The use of superlatives is also very objectionable, as it partakes somewhat of exaggeration. All technical words or phrases should be as much as possible avoided; and where they are absolutely necessary, they should be briefly explained.

As a case in point, showing the necessity for care in the use of words, is the following from a published Paper by the late Sir R. Christison: “Some years ago, on an important trial in the High Court of Justiciary for assault, the public prosecutor attempted to prove that the person assailed had been wounded to the effusion of blood; which is held in law to be an aggravation of guilt in such cases. When the principal medical witness was examined as to the injuries inflicted, he was asked whether any blood had been effused; and he replied that a good deal must have been effused. But he meant that there was effusion of blood under the skin, constituting the contusion he had described; while the counsel and the Court at first received his answer as implying that there had been considerable loss of blood from a wound. The latter view was on the point of passing to the jury as a fact, when one of the judges detected the equivoque, and set the matter to rights.”[1]

In Scotland a medical practitioner may be called upon by the authorities to grant reports as to dead bodies, without performing a post-mortem examination.

In the first case, where a death has occurred unaccompanied by any suspicious circumstances, or where the evidence of suicide or death from accidental injury is apparent from a simple examination of the body, a certificate “on soul and conscience,” stating the probable cause of death, is considered sufficient by the authorities, and a post-mortem is dispensed with. It is not necessary that the deceased be seen by the medical practitioner before death, “yet, from the suddenness of the death, the age of the deceased, and the symptoms spoken to by the friends, he may still be enabled, satisfactorily to himself, to certify the cause of death.” In England, such a case would be the subject of a coroner‘s inquest.

In the second case, he may be summoned by a constable to inspect a body found on the public road, or in any other unusual situation. In this case he is called not only to certify the fact, but also the probable cause of death. He may, under these circumstances, give a report of the external examination of the body, at the same time suggesting the necessity for further and more careful examination by dissection, &c., and this is considered the proper course for him to take. In England, in this case also, an inquest would be necessary. In all cases medical men will consult their own interests in giving these Reports.

A Medical Report consists of two parts—the Minute of the Examination, and the Reasoned Opinion on the first portion of the Report. In the case where the Report is made by two or more persons appointed for the purpose, the latter portion is written in the plural, and signed by each of the parties certifying.

The following is an outline of a Medical Report, which may be more or less modified to suit the requirements of the case:

FORM OF MEDICAL REPORT

(Date.)(Place of Examination.)

(Names of those who can speak to the Identity of the Body.)

I. MINUTE OF THE EXAMINATION

1. External Inspection

1. General Condition of the Body.—(a) Well or ill nourished.
(b) General colour. (c) Marks and scars. (d) Products of
disease—Ulcers, hernia, &c. (e) Injuries.

Caution.—There may be no external marks of injury, and
yet death may be due to violence. Extreme difficulty in
deciding if injury be inflicted before or after death.

2. Height.—Determined by measurement.

3. Age.—This can only be approximately guessed.

4. Sex.—This is, of course, only difficult when
putrefaction is far advanced. Hair found only on the
MONS VENERIS or PUBES is characteristic of the female,
but if it extend upwards on the abdomen, equally so
of the male. No sex can be distinguished in the
embryo before the third month of intra-uterine life.

5. Colour of the Eyes.—Difficult of determination.
Why?
(a) Disagreement of observers.
(b)Presence of putrefaction.

6. Colour of the Hair.—This is necessary, in order to compare
hair of deceased with that found on suspected party.

7. Position of the Tongue.—Normal or abnormal, injured
or uninjured.

8. Condition and Number of the Teeth.—(a)Complete.
(b) Incomplete. (c) Any peculiarity as regards size or form,
in order to compare with mark or bite on suspected party, &c.

9. Signs of Death.—Presence or absence of the rigor mortis
or supervening putrefaction.

10. Condition and Contents of the Hands and Nails.—
(a) In the drowned: weeds, sand, and signs of long immersion.
(b) In those shot:scorching or blackening of the hand from powder,
or injury from recoil of the weapon.Is the weapon grasped firmly
in the hand? Cadaveric spasm? Cadaveric rigidity?

11. Condition of the Natural Openings of the Body—Nose,
Mouth, &c.—(a) Presence of sand or weeds in mouth
of those found in the water. (b) Presence of marks of
corrosive poisons. (c) Presence or absence of the
signs of virginity, or of recent injury about the parts.

12. Condition of the Neck.—(a) Presence of marks of strangulation.
(b) Condition of the upper cervical vertebræ.
(c) Dangers to be avoided in determining the fracture or dislocation
the cervical vrtebræ. Great mobility of neck, sometimes present,
not due to injury of the bone.

II. THE REASONED OPINION

In this portion of the Report the inspectors state the nature of the conclusion at which they have arrived, and their reasons.

Recapitulation of the foregoing Rules.—It may be of advantage here to restate, in a tabular form, a few suggestions as to the composition of the Report:

N.B.—1. Let the Report be as short as possible, but state your views with clearness and distinctness. After stating the nature of the disease in any organ, report “all other organs healthy,” if they have been found so. To specify some organs, omitting others, may lead to a pressing inquiry from counsel as to the condition of the supra-renal capsules, or some other organ, and an unfounded doubt cast on the Report of the examiner.

2. Always avoid the use of technical terms as far as possible, so that you may be saved the annoyance of having to explain your meaning in the witness-box.

3. Express all dates and numbers in writing. Measure all marks, and describe their size and appearance in writing. Carefully write all names of persons to whom reference is made. Take accurate notes, and from them compose your report. Make a list of all articles submitted for inspection and analysis, and label them.

4. State all facts clearly and chronologically. A fact is what is known directly and personally to witness, and not what has been repeated by some other person. Do not report hearsay testimony as matters of fact.

5. Every report should be written under the impression that it may come into court to be read.

6. Always avoid superlatives and all epithets of feeling or impressions on the mind.

7. Always avoid speculative opinions and reference to moral circumstances, unless specially required to do so.

8. State your conclusions at the end of the Report in as few sentences as possible.

9. Keep a rough draft of all your Reports, for future reference.

10. Transmit Report, signed and dated, without unnecessary delay, to the proper authorities.

Dying Declarations.—The principle on which these are accepted is founded, partly on the awful situation of the dying person, and partly on the absence of interested motives in one on the brink of eternity, and which is supposed to obviate the necessity of a cross-examination. The law presumes that any one cognisant of impending death will tell the truth, and such declarations are equal to evidence on oath. The greatest care must be taken by the medical man who is called in to see a person supposed to be dying, with regard to any declaration he or she may wish to make. He must be satisfied as to the mental condition of the person. The medical attendant should simply take the statement as it is made, writing it down on the spot, or as soon after as possible. The identical words used should be committed to paper, and no suggestions or interpretations of his own should be made. Leading questions should never be put, nor any attempt made to induce the patient to make any statement. When we consider the condition of the patient, the possibility of delirium induced by the severity of the injury, together with the dread of death, it is, to say the least, injudicious to introduce the suspected party into the room for the purpose of identification, though this procedure has been suggested by some writers. In every case, however, it is advisable for the medical attendant, as soon as he sees that the case must end fatally, to acquaint the patient in the presence of others of the fact, when any statements made may then be taken. It is preferable that such statements be made before a magistrate if time will allow. It should also be borne in mind by those receiving dying declarations, that in England “it must be shown that the deceased, at the time he made the statement, was under the impression that death was impending; not merely that he had received an injury from which death must ensue, but that, as the popular phrase goes, ‘he then believed he was on the point of death’” (R. v. Forester). In one case (R. v. Fagent, 7 C. & P. 238) it was held that a declaration was inadmissible, because the person making it asked some one near her whether he thought she would “rise again”; and it was held that this showed such a hope of recovery as rendered the previous declaration inadmissible. The declaration should be signed by the person making it, and witnessed by some one present at the time.

In the case of Reg. v. Whitmarsh (Central Criminal Court, Sept. 19, 20, 21, 1896), 62 J.P. 680. Upon an indictment for the murder of a woman, who died as the result of the prisoner having used certain instruments or other means upon her with the intent to procure her miscarriage, it was shown that an inspector of police had seen her at Charing Cross Hospital. He asked her questions, and from her answers he wrote down a statement. The woman signed it. On July 7 the woman appeared to be in a dying condition, and was aware of it. She said she feared she must die, and asked to see her mother and a clergyman. The doctor told her that he had given up all hope, and that she might not live to see her mother. A magistrate saw her shortly afterwards, and read over to her the statement she made on June 29, and he affixed to it the following note, “This statement was read over to Alice Bayley by me, and is referred to in her dying declaration,” and signed. Held (Darling, J.), that though this statement might be admissible, it had better not be admitted in evidence. On the same day the woman had also made a statement to the magistrate, of which he had taken note, but before it was finished she became exhausted. The magistrate then took the statement of June 29, repeated portions of it to her in his own words, wrote these down, and asked her if it was correct. He then read the whole statement to her and she signed it. The statement commenced, “Having the fear of death before me, and being without hope of recovery”—concluding with the words, “And the statement I made on the 29th of June, and have now heard read over, is true.”

Justice Darling held this statement was admissible as a dying declaration.

In the case of Rex v. Smith, 65 J.P. 426 (Bruce, J., Central Criminal Court). A magistrate and a doctor visited a dying woman for the purpose of taking her statement. In reply to a question put to her by one of them, she said, “I am aware that I am seriously ill.” The magistrate asked her questions and the doctor wrote down the answers. At the trial the statement was objected to as inadmissible as a dying declaration on two grounds: Firstly, that the statement consists only of answers to questions put to her by the magistrate, and so comes within the ruling of Cave, J., in Reg. v. Mitchell, 17 Cox C.C. 503, that “a declaration should be taken down in the exact words which the person who makes it uses, in order that it may be possible from those words to arrive precisely at what the person meant. When a statement is not the ipsissima verba of the person making it, but is composed of a mixture of questions and answers, there are several objections open to its reception in evidence.... In the first place, the questions may be leading questions, and in the condition of a person making a dying declaration there is always very great danger of leading questions being answered without their force and effect being fully comprehended.”

Secondly, the prosecution had not shown that at the time the woman made the statement she was in expectation of immediate death.

The judge held (1) That the prosecution had not proved that in her own opinion the woman was beyond all hope of recovery, and that therefore the statement was inadmissible; (2) That such a statement—the magistrate asking her questions and the doctor taking down only her answers in writing—was not admissible as a dying declaration.

In the case of Rex v. Holloway, 65 J.P. 712 (Wills, J., Central Criminal Court). The prisoner threw a burning lamp at his stepson and set fire to his stepdaughter, who succumbed to the burns she received. A deposition of the deceased girl was taken down by a magistrate. At the time it was taken it was intended that it should be in accordance with the provisions of the 1867 Act. The accused was present and had full opportunity of cross-examining the witness. The deposition was read over to the girl, and she assented to it, but could not sign it because of the injuries to her hands. The magistrate who took the deposition signed it. It was held that the deposition had been taken in accordance with the provisions of the Indictable Offences Act, 1848, sec. 17, and was admissible though it had not been signed by the girl.

The validity of a dying declaration has been called in question when made by a person who has suffered a severe concussion of the brain, and then recovered his sensibility. It is well known that under such circumstances the recollection of what took place before or after the injury is in many cases very imperfect, and the injured party may thus draw unintentionally upon his imagination for his facts. In Scotland, “the written deposition of a person who is dead is admissible, whether the person were the party injured or not, if he would have been a competent witness. It is not necessary that the deceased believe himself to be dying when he emits the deposition, for his consciousness of approaching death may be inferred from the nature of the wound, or the state of illness or other circumstances of the case. Such depositions are generally taken by a magistrate, but a declaration deliberately made, though without an oath, and taken down ‘by a creditable person,’ is admissible” (Macdonald, Scottish Criminal Law, p. 512).