The law has nothing to do with the merits of particular systems or schools of medicine. Their relative merits may become the subject of inquiry when the skill or ability of a practitioner, in any given case, is to be passed upon as a matter of fact. But the law does not and cannot supply any positive rules for the interpretation of medical science. It is not one of those certain or exact sciences in which truths become established and fixed, but it is essentially progressive in its nature. No one system of practice has been uniformly followed, but physicians, from the days of Hippocrates, have been divided into opposing sects and schools. The sects of the dogmatists and the empirics divided the ancient world for centuries until the rise of the methodics, who in their turn gave way to innumerable sects. Theories of practice believed to be infallible in one age have been utterly rejected in another. For thirteen centuries Europe yielded to the authority of Galen. He was implicitly followed, his practice strictly pursued. Everything that seemed to conflict with his precepts was rejected; and yet, in the revolutions of medical opinion, the works of this undoubtedly great man were publicly burned by Paracelsus and his disciples; and for centuries following the medical world was divided between the Galenists and the chemists, until a complete ascendancy over both was obtained by the vitalists. This state of things has been occasioned by the circumstance that medical practitioners have often been more given to the formation of theories upon the nature of |43| disease and the mode of its treatment, than to that careful observation and patient accumulation of facts by which, in other sciences, the phenomena of nature have been unravelled. * * * It is not to be overlooked that as an art it has been characterised in a greater degree by fluctuations of opinion as to its principles and the mode of its practice than perhaps any other pursuit. That it has been distinguished by the constant promulgation and explosion of theories. That it has alternated between the advancement of new doctrines and the revival of old ones; and that its professors in every age have been noted for the tenacity with which they have clung to opinions, and the unanimity with which they have resisted the introduction of valuable discoveries. They still continue to disagree in respect to the treatment of diseases as old as the human race; and at the present day * * * a radical and fundamental difference divides the allopathists from the followers of Hahnemann, to say nothing of those who believe in the sovereign instrumentality. * * * The axiom that doctors differ is as true now as ever it was ([90]). Thus spake Daly, J.; the reporter observes in a note: “It may, perhaps, be safely questioned whether the sister sciences of law and theology present any such unity or certainty of opinion as might enable them to arraign the medical profession.”
In Great Britain and Ireland, since the passing of the Medical Act of 1858, every one registered under the provisions of that Act is entitled, according to his qualification, to practise medicine or surgery, or both (as the case may be), in any part of Her Majesty’s Dominions, and to recover on any court of law (should any patient neglect to pay) his reasonable charges for professional aid, advice and visits, and the costs of any medicine, or other medical or surgical appliances rendered or supplied by |44| him to his patient; but any one not so registered cannot recover any such charges in any court of law. Proof of registration is absolutely necessary for a recovery; but it will suffice if the registration has taken place before the trial ([91]).
And as to who may be registered; the Act says any one may be who is a fellow, member, licentiate, or extra licentiate, of the Royal College of Physicians of London, or of the Royal College of Physicians of Edinburgh, or of the King and Queen’s College of Ireland; or fellow, member, or licentiate in midwifery, of the Royal College of Surgeons of England, or fellow or licentiate of the Royal College of Surgeons of Edinburgh, or of the Faculty of Physicians and Surgeons of Glasgow, or of the Society of Apothecaries, London, or of the Apothecaries Hall, Dublin; or doctor, bachelor, or licentiate of medicine, of any university of the United Kingdom, or licentiate in surgery of any university in Ireland; or doctor of medicine by doctorate granted prior to August, 1858, by the Archbishop of Canterbury; or doctor of medicine of any foreign or colonial college, after examination, or who satisfies the Council of Education and Registration that there is sufficient reason for admitting him to be registered ([92]).
In France, the medical profession is divided into two grades; in the higher grade are all doctors of medicine of the universities; those in the lower grade are officiers de santé. In Germany, the right to practise is conferred by a state licence granted on passing the staats-examen: the degree of doctor of medicine is almost always taken at some university after obtaining the state license. In Austria, the |45| right to practise is carried by the degree of doctor of medicine obtained from a university ([93]).
The legislature of every colony of Great Britain has full power to make laws for the purpose of enforcing the registration within its jurisdiction of medical practitioners, including those registered under the Imperial Act.
In Ontario, the medical profession is incorporated under the name and style of “The College of Physicians and Surgeons of Ontario,” and every person registered under the provisions of the Ontario Medical Act ([94]) is a member of the college. There is a “Council,” in part appointed by certain educational institutions, in part elected by practitioners. This council fixes the curriculum of studies, appoints examiners, and arranges the examinations of those desirous of admission to practise; it also arranges for the registration of those who pass the examinations, or had certain qualifications before July, 1870. Every one who passes the examinations and has complied with the rules and regulations of the council, and paid his fees, is entitled to registration, and by virtue thereof to practise medicine, surgery and midwifery in the Province. If registration is not granted to one he may compel it by a writ of mandamus ([95]).
Registration is essential to entitle a practitioner to recover any charges for medical or surgical advice, or for attendance, or for performance of any operation, or for any medicine he may have prescribed or supplied. (This last clause does not apply to any licensed chemist or druggist.) And if any one unregistered, for hire, gain or hope of reward, practises or professes to practise medicine, surgery or midwifery, or advertises to give advice therein, he is liable |46| to a fine of from $25 to $100. And any one not registered who takes or uses any name, title, addition or description implying or calculated to lead people to infer that he is registered, or that he is recognized by law as a physician, surgeon, accoucheur, or a licentiate in medicine, surgery or midwifery, is liable to the same penalty. Any person who wilfully or falsely pretends to be a physician, doctor of medicine, surgeon, or general practitioner, or assumes any title, addition or description, other than he actually possesses and is legally entitled to, is liable to a fine of from $10 to $50. But it is not punishable to practise for love or charity, and any one who has the degree of doctor of medicine may place the letters “M.D.” after his name, even though he is not a registered practitioner, if he do not act as such for hire or gain ([96]).
Where one partner was registered and the other was not, and there was painted on the sign after the name of the first “M.D., M. C. P. & S., Ont.,” and after the name of the other only “M.D.,” it was held that the use of the simple letters “M.D.,” in contradistinction to the full titles of the partner on the same sign was not the use of a title “calculated to lead people to infer registration,” and that the unregistered partner was not guilty of an offence under the act ([97]).
In Ontario, provision is made for the registration of Homœopathists as well as of regular practitioners, and for the Eclectics who were practising in the Province for six years before 1874.
A physician practising in another country, and performing medical services for a patient then residing there, may recover his fees in this Province notwithstanding he is not |47| registered ([98]). A medical practitioner duly registered in England, under the Imperial Act, is entitled in Ontario to registration upon payment of fees without examination ([99]).