DOCTORS AND THE LAW.

PEERS DAVIDSON, M.A.
(Of the Montreal Bar.)

{Reprinted from the MorUreal Medical Journal, January, 1898.)

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DOCTORS AND THE LAW.

Pekrs Davidsox, M.A.
Of the Moutrt'rtl Bar.

It does not coiiu' witliin tl\t' scope of this papt'i- to discuss tlu' re-
spective origins of medicine and law nor to compare the professions
one with the other, as mioht he ini'erred fi-om tlie foro^oinL' heading
The law, deriving its origin from the i-elations lietweeii the members
of the primeval family and of the village conniiunity. l>roteetsand safe-
guards Uu; individual )iy detining his rights and duties. It to that ex-
tent therefore protects the per.son. .Mt dicine, on the other hand, 1 use
the term in its widest sen.st!, has a more intimate relation with the per-
son, inasmucli as by saving and protiicting hnmnn life, it assists in eii-
abii'ig the individual to continue to enjoy the rights preserved liy the
law. Both .seek the preservation of .society, but in widely diffei'ent
mannei's. It does not follow however that they are ii[)on an e(|uality.
Communities have lived without medicine. Law' in .some fonn or other
is indispensable to their existence. Hence the latt(.'r is always the super-
ior, though from its nature medicintj may be the more noV)le. While the
medical profession 'herefore, may be gov(;rned b}' its own rules and
ethics, they do not and cannot eti'ect society as a whole. Notwith-
standing and irrespective of them, doctoi's are governed by the law,
as fully and as absolutely as other members of .society. Owing how-
ever to their intimate relations with the 'person " of the individual,
legal questions of unusual interest and difficulty ai-i.se.

So essential has the medical profession made itself to society and
its immunity from disease, so valuable has its science become for the
detection of ci'ime, that its members may frequently be viewed in thi-
light of public officers. The conflict between public and private duty
is frequent cause of perplexity to them. In this paper, it is not my
intention to discuss what may Ije term<.'d Legal Medicine, or Medical
Jurisprudence. That is a suV)ject for the doctor rather than the
lawyer. That is medicine as applied to law. I pnjpose to deal with
law as applied to doctors, to discu.ss the position of the doctor as re-
spects the law — his per.sonal rights and lial)ilitie.s, as he performs some
of his varied professional duties. He occupies a distinct place in
society. Society, in virtue oi statutory or common law places upon him
certain obligations in addition to those of an ordinary member of it

56149

Tho .suhj'.'c't is »i l)roa(l one arnl difficult of corulcnsation within thr
limits of n paper suited to the occasion. J shall I)rietly <h'al with the
foHo\vin<; princi[)al subjects. The Doctor as a Witness, His (hity in
rehition to Acts of Status, His Civil Responsibility and His Criminal
Responsibility. For convenvienee 1 have placed these under four
chapter.s.

CHAPTER I.

The D(ioti)|{ a.s .\ Witness.

(a) Thr StiJ)p(ev(i.
Every person is compelled to appear before the Civil Courts, when-
ever a copy of writ of sultpiena is served upon hiui at lea,st one
clear day before that iixed for his examination, this delay of one day
being increased at the rate of one day for every fifteen miles when
tlie distance exceeds Hfteen miles. (C. P. 297). If he does not obey
the subpci'na he is liable to a Hue of not exceeding S4().0(). Indepen-
dently of this, the party who summoned him niay have damages for
his default and inipri.sonmeiit for contempt, if it lie. (C. P. 308). If,
liowever, he must disliurse something to arrive at the plac(; of exam-
ination he is under no obligation to obey the subpiena unless a rea-
sonable amount is tendered to him at the time of its service.

{!)) TJic. I)tirl(ir (IS 'I Witncs.s nii Miiffrrs of Opinion.

He can only be summoned " to declare what he knows oj" produce
some document in his possession, or do both." (C.P. 29S). It would
therefore api)ear, under the law, that he cannot be compelled to testify
as to a matter of opinion. The public have no right to demand a
man's services as an expert unless he con.sents thereto. They have,
however, the right to demaml his eviilence upon facts which have
come to his knowledge, no matter by what means. It ia not for him
to judge, whether he can testify to facts in the particular case or not.
It frequently happens that amid the complications of facts and names
in a busy man's daily life he courpleteiy forgets the facts, until
ren)inded of them in the witness box. If he wishes therefore to avoid
the possibilit}- of a fine he must oljey his subpoma and after ascer-
taining in open court that only his opinion is desired, he may refu.se
to give it unless his terms are complied with.

Once put up(jn the stand as a skilled witness his ol)ligation to the
public ceases and he stands in the position of any professional man
consulted in ivlation to a subject upon which his opinion is sought.
It is evid(>nt that the skill and professional experience of a ma*^ is so
far his individual capital and property, that he cannot be compelled
Kf^t to bestow it gratuitously upon any party. Neither the public, any

B. Q. R.

HOMH

more tlian a j)rivatt' )K'ist)ii, havo a ri^^lit to extort si'i'viccs from liiiii
in tlic line of his prot'cssion, without fuliMHiatc foiiipt'iisatioii. (hi the
witness stand, precisely as in liis oHice, his opii.ion niiiy lie ^ixen or
witlilield at pleasure, foi" a skilleil witness cainint lie compelled to ^ive
an opinion, nor Im- eonnnitted i'or contempt it' lie refuses to dn so.
Whoever (tails for an opini.)n fiitm him in chief, is under olilii^ation to
remunerate him, since he has to that extent employed him personally ;
and the expei't at th(> outset may decline t^iviuff hi>. o))inion until the
pai'ty calling' him either ])ays, oi- fi'^rees io piiy him for it When,
however, he has given his opinion he has now ])liiced it among the
rcK pesfes of the evidence, nnd can not decline re))eatin<4' or explaining
it on cross-examination. Once utti'red to the ])nlilic ear of the court,
it passes among the facts in evidence, and counsel may use it as they
please, without any further compensation to him. The ])oint of
declining to give it gratuitou.sly must be made, if at all, at the o])en-
ing of his examination in chief, and will avail him nothing if delaye<l
until the cross-examination. He has lieen called to he consulted iti
open court by somebody nnd from that pai-ty alone has he a right to
claim a compensation for his services (Ordronnux. Med. .iurisp, * 114,
115).

7hc medical witness is not permitted to resid his t(\\t-liooks in the
witness box. But he may refer to them to refresh his memory
(Roscoe's Cr. Ev. p. 187. Taylor Evid. vol. 2, ji. !)4f). Ordronaux
Med. Jurisp. par. 122). In cross I'xamination however, (juotations
from well known authors may be read by counsel and tlu" witness
asked whethi^r he agrees or disagrei's with them.

It is not within the scope of this ])aper to discuss the bearing and
conduct of the doctor in the witness Imx. That is a matter I'ather for
a doctor to discuss than a lawyei'. Hut it may be ni}' duty to refei-
in passing to the loss of pnjstige which expert evidence is daily suffer-
ing. I do not say that it is confined to the medical profession. It is
caufad by the apparent ease with which contradictory expert evidence
and more particularly medical evidence, may be obtained. Medical
men ii\ay reply that they are led asti-ay by the legal profession. No
doubt there is some force in the argument. Lawyers naturally will
take advantage of any tendency which for the time being will mili-
tate in their favoui*. The predisposition to disagri'c is as strong
among medical men as among the legal fi-aternity. I do )iiit think
the inaccuracies of .science are altogether to blame. The popular dis-
tinction however remains between the " liai'. the d — d liar and the
expert," and the .sooner its cause is rem()\(<l the better. It seems to
nie that the only practical solution of the difliculty would be a law

nHpiirinji; a Imard of cxpfM'ts to l>o appointiMl \>y the cotirt in t-a^'li
instance indcpumlfnt of ami above the intluencc of (utluT sitlc. (Or-
"Ironaux, Med, .lnri.s|)ruden('e, • 1 14, 115).

{(■) TIh' Diiclor lis (I Wilinxs 1)11 Mdtlcrs of Foct.

ir lie 1)0 a witness of I'aet lie can eiaiiii no privile^^e bnt isconi|)elled
to answer all (piestions put to him i-elevuiit to tlir matter at issue, no
matter whether he has ohtained the information professionally inider
tlie pledj^e of secrecy oi' otherwise. (C. P. 882, Browne vs. Carter,
C. S., Berthelot, ,I„ 18(55, <)L. C. .1. 108). In this respect he is not
accorded the same favour as the i.lerny, lawyers and notaries. If he
be in doulit as to the relevancy of the (piestion, or as to whether he
should answer it he may appeal to the presidin;f jud^e, whose decision
he must accept without fjuestion. (Taylor, Med. .lurisp. p. 29). If he
be in good faith and without malice he need not fear the consequence
of his evidence, no matter how prejudicious it may b« to the reputa-
tion of the party. Justice demands that he should give all his infor-
mation on all points at issue, abs(jlutely without reservation. Justice
protects him from the consequences thereof and declares it to be a
privileged communication. (C. R. Labbe vs. Pidgeon, 1 R. de J. 135 ;
R. J. Q. 7 8. C. 27). It is not for him to inc|uire into the regularity
of the proceedings, as for instance a Coroner's inquest. (Id).

(d) Fees for Evidevce in Civil Matters.

It sometimes happens, I regret to say, that medical men are com-
pelled to attend at court for hours at a time before their evidence is
taken, the small fee for such attendance by no means repaying them
for their l(xss of time. It is rarely, however, that physicians cannot
make some ari'angements with the lawyers who .subpa-na them, to
give their evidence at a fixed hour. The professional tax amounts
to four dollars a day. Lawyers, doctors and engineers are all in
the same position. I know it is a matter of complaint among
medical men, that they are unable to ascertain what is due them
and even unable to collect this amount, when ascertained. I may
say, that it is the cvistom, if a witness has attended even for a
few minutes in the morning and has left on ascertaining that he would
not be required, to tax him for one half day. If he again attends in
the afternoon with the same result, it is the custom to tax him for the
whole day. He is ordered by his subpoena to attend from day to day
until heard.

On leaving the box finally, his proper course is to at once ask the clerk
for taxation. He will ask him how many days and half days he has
attended and he is permitted to reckon them upon the principle above

iaiil (li)vvn. Tlu! cUn'k imiy swear tin* witness ;is tn Iiis atteiiilance
if either pai'ty "leiiiamls it. I'lie jilil'^iiieiit when, reiiileicil, cttiideniiis
one oi' the (itiier of tlie pai'ties to pay the costs. 'I'jic taxation of a
witness is a jndj^inent a<,'ainst the pni-ty who cmIIimI him ami may lie
e.xecuted like one, irres|H'oti\e of ilir iavvyers (( '. I' :{."{( i). .Vpplicntion
shouM 111- niude to the liiwyer who smnnioiu'd tin' witness. If the
a))plu'atioii is unsuccessful tin wiiU' ^s may id once npply to tlic clei'l\
for nil execution.

((■) A'o'.s III ('rnii null Miittii's.

nndei' a special < )rder in ( 'oiuicil, the tullowiiiLT is the turiH' \\>y
expert witnesses in criniiiial mutters.

Ht^Midents of tlie Cities of Mont iTuI lunl Qiu'Ih'c for ciii'li roiniilcli'

(lay of iiltendiuicc lUcourt .^10(1(1

Residents of thcCitii'Hof Moni real and (^ni'l)i'c foi' iiiiv pai'l of a day. 5 0(1
Rosideiils of any otlici-city for each cotiiplete day of atleiulaiice at

L-oiirt 8 (Kl

I{esidcnts of any other city for any jiiirt of a day I (Ml

" " any otlier i)art of ; hi Province for each complete day of

at tendance "i (HI

Residents of any other part of tlie I ir>vinci' for any part of a day. . 'J. .")(i
For mileaKC when the di.stancc travelled exceeds two ndlcs, ten cents per mile
eacli way.

For each day not exceeding three days, occiuiied in wliole or in part in the study
of any suh.ject, ipiestion or matter ordered liytlie .ludj^e, the .\t torney-tieneral or
liis representative and upoa which professional evidence is suhseipientiy to he kivlmi
in court .?5.(I0

This tariff applies to fill criminal trials.

If called liy the defence, the doctor must take his chances of collect-
ma; from the! defendant and usually they are very slim. As a rule
however, he is called hy the defenct^ on matters of opinion and he can
then protect himself l)y refusin«;' to answer luitil l.is fee is pai^l,

( /■' ) Proof of Aci'on lit of Si'rrifi's Ri'iiilcri'if

It .sometimes hecoines necessary for the phy.sician to sue for his fees.
This action must he taken within tiv(> years from the last payment on
account. Special excejitiou is made in favour of the physician or
suro'con enalilint;- him hy his own oath to make proof as to " the
nature and duration (jf the services." Under this law up to this year
there has been .some conflictint;- jurisprudence om the (piestion as to
whether the phy.sician could also prove the fact of the services
htiviii^ lieen rendered. The ])ractice has of late years heen to permit
hiin to do so. However, a statute (jf the last .session of the Legisla-
ture (60 Vic. cap. 54) enabling all particis to make proof in their own
behalf in al' cases, lioth disposes of this (piestion and renders obsolete
the s[)eeial exception in favour of the medical profession.

6
ClIAl'TKR II.

TlIK l)(M nuts' DiTY IN llKI.ATION TO AcTS OF STATUS.

(^)iii'sti(»ns iiiiiy iii-isc as to tlir <Iuty ol' ilot'tora rcspcctiiii; acts of
l>irt)i uinl acts of Imrial.

(ii) Acts of li'n'fh.

Ill Kruncc tlio law charj^i's certain pers(»ns, such as fathers, tnothrrs
•iikI doctors, oi* inidwivt-s, or any oth(!r jicrson who may have licni
present at tlie accouchement to declare the hirtli to the authoriti(!s.

In the Province of (J(uel»ee there is no such olili<^ration upon any
person save the father and mother.

(/>) Acts of BiivUd.

It is different, however, respectinfj Acts of Burial. The provincial
act concerning Compilation of Vital Stati.stics (56 Vic. cap. 29, sec
8059e) provides that every physician who has been called upon to
r(!nd(?r professional services during the last sickness of any deceased
person shall under his hand, certify to the death and cause of death
of such person, giving the name and surname, age, .sex, nature of pro-
fession or calling, date of death, duration of illness and cause of death.
Such certificate must be i-equired by the keepers of the regi iters of
burial, for example the cemetery authorities, before pi'oceeding to the
burial or granting the burial permit."

Under this section, physicians should be careful to give such a cer-
tificate, only when they have been called to give their professional
.services during the last illness of the deceased person. Otherwise
they may certify to facts on hearsay evidence, thereby causing them-
selves subsecjuent trouble and annoyance. Under the amendment to
the City Charter however (59 Vic. cap. 50 sec. 17 b) it is provided
that: "In all cases of death occurring in ^.he city, a certiHcate be
deposited in the health office, and that such certificate be made in the
foiiii and manner determined b}' the Board of Health and the Council.
It would therefore appear that the medical man had to give two certi-
ficates of death in each instance. However, by Order-in-Council of
the 29th September, 1896, doctors are relieved from the duty of giving
a certificate to the Provincial Board of Health as required by 56
Victoria, but must conform to the City Regulations which are practi-
cally the same.

In this connection, Art. 69 of the Civil Code is of interest. It reads
as follows : " When there is any sign or indication of death having been
" caused by violence or when there are other circumstances which
" give reason to suspect it, or the death happens in any prison, asylum
" or place of forcible confinement, the burial cannot be proceeded with

" until it is inithoriscn) liy the coroner or other officer whose duty it is
" to inspect the hody in sufh ciises.

What is t)it' duty ol" a doctor then, civilly speakiiiif, when he linds
himself face to face with any si;^n which indicates death hy violence
or when there are other circumstances which j^five reason tosusjiect it:"

In the first place, what is violent death (

Worcester <loHnes it to he that " produced hy t'onre or violence, not
naturally." Taylor on Me<lical Jurisprudence (vol. I, p KiO) enum-
erates the various causes of " violent death ' as lieini^ " [)oi,soiiin;^'.
woinids and personal injuries, such as hurns and scalds, as well as
tho.se forms of death which conunence hy the lun^s, indudinj^ drown-
ing, har><,'in^ stranjijulation and su (location." In his di.scu.ssion of
these forms he includes the mi'dlad operation. (See also Laca.s,s)ieiie.
Medicine Judiciare, p. 102). Hence all deaths resnltiiiLf from eithei'
accidental or criminal acts and even from medical operations ii.re
violejjt deaths in the uuianinif of the law ami the deceased cannot he
interred until his interment is authorised l)y the coi-oiier.

It should he clearly undei'stood that there is no law placinj;' upon
medical men the obli^'ation to notify the coroner in cases of violent
death. It is theref(.)re evident that a failure to notify him does not
beget a civil lial»ility.

The physician may give his certificate, which in all cases he should
be careful is absolutely exact, ami tlirow the onus of informing the
coroner upon the authorities who, Ijy law, are prohibited from permit-
ting the burial. In practice, however, with this ultimate result in
view, physicians will usually consi<ler it more ciuivenieut both for
themselves and the relatives of the patient to at once notify the
coroner. If the violent death be traceable in .some measure to medical
treatment it is in the interest of the physician him.self to place the
matter clearly before the coroner and thus avoid future possible mis-
understanding.

GHAPTER III.
Civil Re.sponsihility.

Under this general term arise the great majority of (juestions in
connection with the relations between meilical men and the outside
world, in the course of their daily practice, 'i'he wor<l " icsponsibility "
practically means in general, under the French law, " the obligiition to
repair a damage." (Villargues" Diet, de Dr. Civ.)

(a) The Doctor)^' Civil ResponNibillti/ for the lictnii/dl of the

Professional Secret.

The majority of the questions which arise under this head, do so in
relation to the observation or breach of the professional secret. They

art' (jut'sfcions into wliicli cuter coiisidcrivtioiis of pi'iviiU' intrrcist, pro-
iVssioiuil t'ticjiicttc, jmlilic jjolicy and tlic iiitci'csts of society. So
conriictinir jii-c tlir divcis iiiti iTsts wliicli must lie (onsidcrt'd, so
varied are the eireumstaiices uiidiT wlncli the different (|uestions arise,
thut it is exeiTdin^ly dilfieult to l.-iy down a general principle for all
eases. J propose, liow'evei', to discuss these (|ue.stions one liy one ami
shall attein])!, to solve as many oi' them as may he ])ossilile.

In France, the (piestion is to a certain deeice siniplitied hy the
i'.\istence of a section in the I'enal Code of which the followino' is a
fi'ee translation. (Art. :i7iS, C. Penal). ■ Doctors, sur^'eons and other
" health otHcers. as well as nudwiM's, pharmacists an<l all other
" per.sons, the receixcrs. either liy status or profession, of secrets wliich
" people conlide to thetn, who, .save in cases in which the law olilin;es
" them to inform, shall have revealecl secrets, shall he punished hy an
" im[)i'isonment of one month to .six months and to a tine of from 100
" francs to 500 francs." Vou will note the exception " save in ca.ses
which the law ohlii^cs them to inform."

This ai'tiele of the Pennl ( "ode is only the legislative enactment of
the old French law ami jurisprudence on the suhject. (Merlin Rep.
\d. Medicine; : id., vo. ( "hirureic ; id., vo. Apothecaire ; Darcau, Traite
des Injui'es, t. J., p. N? ).

The hetrayal of a professional .secret is hy the b'rcnch considered to
he a [)enal oHence which according to their ideas, is midway between
a civil and criminal offence. The i'en.d C'ode layini;' down this prin-
ciple, the civil law ap[ilies it to civil cases. When hy its infraction a
medical man causes daniaocs he is deemed to l)e in fault.

Jn the State of Xew York (Rev. Stat., 5th Ed. vol. 8, p. (i!)0) " no
•' per,son duly authorized to pi-actice [)hysic or suri>-ery is allowed to
" di.sclose any ini'oi-iuation which he may have ac(|uire<l in attending'
' any patient in a pi'ofessional character, and which iid'ormation was
' ne^ce.ssary to enahh^him to pi-e.scrihe foi- such ])atient as a physician,
" or to du any act for him as a surecon." Aceordinjf to this leffisla-
tion the doctoi" is not to disclose his professional secivt even in tlie
witness hox or in Ci'iminal matters, unless thei'(; he I'xccptions in
other statutes wliich 1 have heen mialtle to find. Similar legislation
exists in othei- States of the Union.

There is no such lecrislation in Englan<l or in the Province of Qui'l)ec.

The (|Uestions respectin<f professional .secrets which arise in either
country nnist he decided accordinj^f to the common law in one instance
and the principles of our code and of the old Frmicli law in the second.

It is curious to note that the .sections respecting physicians .in<l
suri^cons in the Revised Statutes make no mention of this important

matter. This is a contrast to tlu' sections rospcctini;' notaries, (11. S.(^).
3G22) which require tlieni to kecj) secret the contideiices inade to them
professionally and (R. S. Q. -SGOS) which places them under the safe-
guard of th(! law in the performance of their professional duties.
Apparently under the Revised Statutes, the Board of Governors of
the College of Piiysicians and Surgeons has no power to make rules
beyond those respecting studies, e.xamiiiations, credentials, etc., regis-
try of names and rules and regulations for the general managi'inent of
the corporation.

Apart from the oath of Hippocrates, administered to him liy his
own profession, the doctor is under our law (juite free to disclose his
professional secret, save in so far as he may render himself liahle in
damages for his act.

I propose to show how this h'gal liability arises.

From the moment of the consultation a contract of hire exists.
This contx'act is subject to the tacit condition that the iiiforiiiatinn
given to the doctor by the patient, which is neci.'.ssary to enable liim
to prescribe for such ])atient or do any act foi- him as a surgfim, shall
be kept in strict confidence. This condition ceases to exist undei'
certain circumstances which I shall discuss later. It owes its exist-
ence to the fact that the members of the medical ])i-(jfession ly tlu;
rules which govern them, hold themselves out to the world as coiiH-
dential advisers. It has also the sanction of public opinion and policy,
which in fact lend to it its main strength.

Under our law, the breach of a condition in a contract renders the
one in fault liable in damages under the following article of the Code.
(C. C. I0")."i). " Every per.son cai)able of discerning right from wrong
" is responsible for the damage caused by his fault to another, whether
" by positive act, imprudence, neglect or want of skill.

It will be noticed that the provisions of the law thus laid down an;
veiy liroad ami general in their terms. The doctor is res[)onsil)l(,' for
damage caused by his fault whether liy im[)rudt,'nce, neglect oi' want
of skill.

In view of the I'xpre.ss legislation in France we must depend upon
the general interpretation of the above article.', with such assistance
as the Engli.sh law may aHbrd.

In England the general principles of the common law may Itc found
laid down in the famous case of Kittson vs. Playfair tried last year.
Probably no case for many yeai's has excited such interest among
physicians throughout the world, on account of the prominent position
of the doctor involved and the tremendous damages of :5G0,000 awarded.
Doctor Playfair was no doubt placed in a trying j)osition. He had

(liscovcrfil, iis 1h' lii'lii'vcd in j^ood t'iiith, that a lady, a relative and
comicction <d' his liv iiiarriam', hail liccii yuiltv of iimiioral C(ji»duct
ill the ahseiice of her hushnud. lie considered hiiiiself under the
iiceessity of either hreakiii'^r his jirofessioiial oath or of periiiittiti;^"
this Woman to iiitiiiiatf.'ly associate with other iimiiihers of his family.
His desire to jtrotect his wife and daughters was the stronger impulse
as it wouhl lie with many othrv professional men, and 1 think justiti-
alily so. It was <|uitc possihle for him and would lie (|uite po.ssihle
for all}' other meilieal man under tlie circuni.stances not only to have
observed his professional oath, and at the sanu' tiuu; protect his family
life. All that was nece.ssai'V for him to have said to his wife was, " I
have reasons for desirini^ you to cease receiving this woman and
desire that she no lon<j^er associate with my dau^'liters," cautioniniif
his wife to attain this end discreetly. Had he jj^one no further than
this it is dillieult to conceive how the law could hav(! n'achi'(l him in
any way. Me was, however, cnmpletely carried away li\' his personal
feeliiin's and went heyond the hounds of prudence and necessity. He
first wrote to the unfortunat(! woman, informin<^ her of his suspicions
and tiireateiiin;;' that, unle.ss she at once left London, lie WoiiM expose
her and cause tin- withdrawal of her allowance hy another branch of
the family. He was obdurate to her pleadiui,^ letters for a further
liearim,!'. He tinallv not onh' told liis wife of his suspicions in detail
but wrote tlu'iii to a relative who was granting- this woman an allow-
ance, advising- him to withdraw it, which he did. I do not see how,
under the eircuuistances, any court could fail to conih'iun not only a
medical man, but any individual for such a series of acts. Tlie fact
that tln' information so utilised was obtained mider the ob'igation of
professional secrecy rendered the offence all the more glarini^ in
ap])reciating the damages.

At the trial he pleade'd privilege, but not the truth of his assertions,
That (piestion came up only incidentally.

.\s indicating the points at issue the following were the tindings of
the jury :

" That Dr. Playfair Itelieved the words to be true, but did not give
the plainMlfan opportunity of making an explanation ; that the words
were not uttere(| in gooil faith and without malice ; and that the
words were not uttered from a mere sense of iluty, but from an
indirect motive."

The general iirinciples of the law on this (piestion in France,
England and here are practically tlie same, with the exception that
the old French law in force in this Province and as expressed in the

section 1058 of the Code, above quoted, is niucli more severe in its
appreciation of facts giving rise to dfirim<fes, tlmn the English law.

Before disc\issing jiarticular (juestions, I would lay down a general
rule respectinsf professional secreey.

The physician is at all times liouml to ohsei-ve the contidono's of
his patient on pain of a condemnation in damages, with the following
exceptions :

1. When li(! has been expressly relieved of his obligation 1)V his
patient.

2. When h(! is orden^d by tin- eourt to answei' iis a witness.
li. When the rules of tin; Board of Health demand it.

4. When it is necessary to free himself from tiie danger of l"'ing
held to be an aider and abettoi- of a eiimeor an aeeessoiy aftci' tin' faet.

5. When an ordinai-ily prudent man, may in good faith, without
malice or exaggeration consider it to lie his duty to soeiety or to himself

The first thriMs exceptions re(|uii(' no further conunent. The fourth
will be explained by a discussion of the criminal aspect of the matter
which I treat of latei'.

The exception under which the physician Hnds t! .greatest difficulty
is the last, that is as to when he may eonsiihn' it his duty to .society
or to himself to divulge his patient's secret and does so without liabil-
ity in damage.s.

I do not enter into a discussion of the struggle between the pliysi-
cian and the man, which is bound to ensue. I only treat the (juestion
on the presumption that he is prepared to lay aside professional
scruples. I presume that he has determined that it is his duty to
speak, but hesitates for fear of pcjssible damage.s.

Our eoiu'ts wouM consider the truth of the iloetor's assertions, bis
clear and over-riding moral duty, his g(jod faith and alwence of malice,
and the fact that he only divulged the secret as a last rescjrt. As the
matter alway.s resolves itself to a matter of " right to damages," the
doctor, ki'eping the above eou.siderations in mind, should be able to
appreciate the I'isk he I'uns and whether the moral and social duty is
sufficiently great to incur it.

You will recognise with me the impossibility of imagining every
variety of circunistance and of going far beyontl general principles^
upon so difficult a question. I shall however, discuss one or two of
the more important questions which may ari.se.

(1) Before Murriaf/e.
Take for instance the case of a patient who has lieen treat' 1 liy a
doctor for some virulent desease and who is al)out to be married, not-
withstanding his physician's protests. If the lady is unknown to the

medical man the {|Uesti()n is not likely to arise with the same force, as
he will prohahly be less prompted to ^o out of his way to prevent the
marriai^e. In fact he would have no opportunity cf preventinj^' it
without a fTlarin;^- breach of professional secret. If the lady, however
is within the innnediate circle . f his acciuaintance there are numerous
ways which may su;^gest themselves to him, by which he can bring
about the same result without breaking confidence. Dr. Bruardel in
his remarkably interesting treatise on " Le Secret Medical " gives an
inuenious method. The fathei- of the: intended bride beinjf a friend
of his, lie one day called liis attention to the deatli of a young husband
who left his wife entirely witliout means, and to the fact that liad the
young Hian hekl a policy of insurance, his wife would have beim pro-
vided for. The conseciuence was that the father of the fiancee at once
requested the intending bridegroom to take out a policy of insurance
on his life and upon his inexplicable refusal, as it appeared to the
father, the match was broken off. In neither of these cases do I think
that the doctor would be Justified in a breach of confidence.

It is presuming an exti'enie case, but within the range of possibility
that the lady about to marry be a menjber of the physician's own
family. In such a case I cannot conceive it possible that a court
of justice would condemn a medical man for protecting his child to
the fullest extent of his power even if it be necessary to disclose to
her the true facts of the case as a last resort. The oViligations and the
duties of the parent rise transcendently above all considerations of
professional duties, of etiquette or of public policy.

As the relationship or connection with the medical man lessened, I
would consider him less justified in breaking professional confidences
to prevent the marriage ; and, when once he left the close relationship
of father and daughter he would have to take his chances of the
appreciation of the tribunal of the whole circumstances of the case.

(3) During Marriage.
Delicate legal questions also arise as to the duty of the doctor, when,
after marriage, the consorts are individually his patients. It would
seem that the professional secret should be observed in this instance
as strictly as the circumstances of the case may require, but I do not
think that owing to the intimate relations and confidences between
husband and wife and the remote possibility of one or the other being
able to claim damages, that the doctor has frequent cause for per-
plexity.

(J) In Reference to Minors and Domestics

The question of professional secret also occasionally arises in refer-
ence to minors and domestics.

In these cases the persons who doinand inforniation as tu the iUness
from which the person is sutiorint,' and to whom the physician is
inclined to give tlie information, are the parr-its and <:fnardians in tlie
one case and the master of tlie servant in the other.

There is no question that the duty of the doctor is in either ease is to
disclose the nature of the illness if it is a contnjrious nature. Tliat
comes within tlie exception as to the rules of the Board of Health.
But if the disease be non-contaoious and of a disreputal)le character,
he should have considerable hesitancy in doinj:^ .so.

The argument recitecl in books, which discuss the (|Ufstion, is that
he who pays for the .services of the physicinn rendered to another
party, be he a minor or domestic, is entitled to full information. 1 do
not thiid< that such individuals are so entitled. For the information
is obtained by the doctor fi''>ni tlu' patient, not becau.se this third
party has paid for the services, but .solely in faith of the physician's
professional obligati(jn of secrecy ami to enalile him to perfoini his
duties properly.

Of cour.se, who'e there may be the difHcult (|Uestiou betwe u tlie
obligation to preserve tlu^ conHilence and at the sunie time ri'speet the
rights of the individual who has the welfare of the minor in charge,
the physician mu.st determine according to the circumstances of tlu'
case, ami should be govcu'iied largely by what he considers to lie the
best interest of both parties. He should be careful that by his com-
munication the minor does not sutler damage, of which in this class of
cases there would be only a remote po.ssibility.

It is more difficult, however, in the case of a domestic or servant.
The physician should be extremely careful. If he is called in by the
master to treat the servant whom he tinds to be suffering from any
ailment which she might under the circumstance oliject to be known
by her master, her as.sociates or the public, he caiiiiot inform the per-
son who employed him without rendering himself liable to an action
in damages, unless tliere be a danger of contagion, which he is unable
to at (mce remove by causing the removal of the servant.

(Jf..) Ill (in Action for P rofcus'ioyial Services Rendered.

The question is also discus.sed in the text-books as to whethei* the
physician can sue for his fees, if Vjy so doing he wiadd have to divulge
professional inforniation of a damaging charncter to the defendant.
It has been held in this Province that a doctor has not the right to
publish in an account for professional services, the nature of the
disease for which he claims the price of his services, when such pub-
lication is of a nature to injure his debtor (5 Q. L. R., p. 267).

I am not disposed to apfree with some iiio(i)eul writt^rs on tliis point
who appear to Ix; of the opinion that the doctoi- should t'oro<,'o his
fees under such cii'cun»stances. There is certainly no necessity for
him tt) do so undci- ou»' system. He ma}' take his action simply foi*
professional sei'vices rendercMl, (I)areau, Trait(J dcs Injures, Tome 1.,
p. 87). If th(! action he contested he need not jjivi; evidence beyond
the facts that professional services wen; rendered on certain dates and
for certain lengths of time and that tln'y wt-n- of certain value. He
may throw the onus u]»on the defendant himself to elicit, if he
choo.ses, the nature of the .services and tlnis Krini^ the matter within
(me of the exceptions above noted. The fact that the defendant so
dejnan<led this information would free tiie doctor from the obliuation
of keeping' it .secret. The (|uestion is not likely U) arise fre(|Uently,
a."-' a patient who wishes to conceal the dl.soase will do all in his power
to prevent tlu' matter going to coui't. On the other Imnd, a physician
will not sue an individual who is not able to pay.

(h.) Tlir Di>('l()r\s Clod RaspoiixihUlli/ /or XcitrKjciicc, I m i)n(il.<uife

till,! Wdiii (>l Shlll.

The physician is responsible, -as I have said, for bis fault, negli-
gence, imprudence or want of skill. The doctor who acts within tlie
limits of his art with a conscientious opinion of the e.vccellency of his
.system incurs no responsiliility. The law determines the gi'a<les by
which one ac(pnres the title of doctor. Imt it suttmits the e.verci.se of
medical ai't to no conti'ol. lie who has obtained degrees from a medi-
cal faculty is hsgally pi-esuuied to have tlie necessary capacity. Thus
the ])ractice of medicine from a scientific [)oint of view can bi'ing with
it no responsibility. But when a grave fault or neglect can be im-
{)ut('d to the doctors, responsil)ility e.xi.sts. The surgeon who perforuis
an operatien in a state of intixxication is responsilde for the con-
.s(;(|Uences : ,so, too, if he has not pi'operly arranged the bandages ;
so, too, if he connnits a material and damaging or fatal error in his
prescription or is guilty of other grave neglect or ignorance. A
doctor w(jnld not be submitted to an action by the fact alone that he
might have been deceived. He might, however, be responsible for
giving an unaccustomed prescription, taking chances as to its efficacy.
The coui't would, however, have to carefully distinguish between
carelessness or empirical audacity and the contidence of a savant or a
man of genius. For it has been the experience in the past on manj'
occasions that such men have been a generation in advance of their
time The courts would have to carefully consider the reasoniiig and
grounds for belief upon which the physician based his treatment

liitlii'i'to \]nkn()wn or but slijj^htly known to nieilical science. (Diilloz
Vo. Responsrtbilito No. 12N).

In nccordiuicc with tiiis principle it ha.s hccn dccidi'd in Kiiincc that
the obstetrician who without necessity auiputatecl tlu> two anus of a
child in order to dclivi-r the niotlier, can be iicld n.-sponsible in <iani-
ages (id. No. 129).

It is to be noted that in oi'der to legally pert'orni a, .surgical opera-
tion the doctor should be authorised b\ the patient or by the per.son
under whose authority he may be. The operation should never be
performed without this authorisation, save in cases of urgency. Hut
it is not neces,sar\-, nor is it customaiy, that the doctor shotdd give
the patient a thorough knowledge of the technical details of the
operation. It is sufficient for him to simply tei in it a surgical opi-ra-
tion for such and such a purpose. The burden of proof as to the
consent of opei'ation is upon the doctoi'. (l)alloz, .1. (J., lSf)I, Vo.
Kesponsabilite-Me(licine).

The doctor is under no obligation to answer e'verv call, but bavins''
undertaken to attend any individual he is responsible for damages
which may be caused by his sub.seciuent inijustiMe<l refusal. It is not
likely that such a (piestion would arise (id 181).

(c.J I hi' Doctor.s (y'lril Rcsixnu^iliUil n /{>!• (!iiii luli'nttul ('on I'crsiilliyii.

The doctor may .sometimes find himself enibarras.sed by the conti-
d(intial (piestion as to tlu; standing of a fellow practitioner. It has
been held " that a statenntnt made liy a pci'.son in the course of a
private conversation with his family physician is privileged, particu-
larly where then- is no proof of malice (Sinn v. Marcus, (i R.J.O.S.C.
Tait, J., 189G)." It has been al.so held " that a doctor who expresses
" in good faith, at a ball, to a friend who consults him in passing, his
" opinion against a .secret and new treatment adopted hy a cnrifrere iov
" the delivery of women without pain, and who cites a ca.se in which
'■ a woman had died after undergoing this treatment, inferring at the
'■ same time for details to a third doctor called to this delivery, cannot
'' be held for slander, because this conversaticm is privileged." It was
" al.so held " that a letter on the subject of such conversation, written
'' by the defendant in reply to a letter from the plaintiff, which asked
'■ him from wdiom he received this information, is also a private and
"privileged confidence " (DeMartigny vs. Mount, 21 R. L. 4G1,
Pagnuelo, 1891, S. C.)

The principle followed was that slander ia order to be punishable
should be public. (Nouveau Dcnizart, Vo. DiflTamation, par. 2, No. 1).
Thus what two people in convei'sation tell each other they think of a

third party would not render tlu-ni lialdo for slander, as a result of
natui-al lilfcrty whicli all men possess of cominuni'atinjj their thoughts
to those wlioni they deem worthy of it, save always professional con-
Hdeiiee. (See a'so iu th(^ snMie sense Tellier .1., S. v. D., 18 R. L.
182.) A deci-^ioi. which appeal's contradictcjry to this general line of
jurisprudence! is as follows (l)eCow v. Lyons, R. J. Q. 4, S. C 341) :
A drug<,dst on being asked Ity a customer as to the professional position
of the plaintirt', a doctor, replied that he had heard that he had tapped
a woman for dropsy, when as a matter of fact she Wiis pregnant. The
Superior Court held that this conversation was privileged, hut this
decision was reversed in Review on the ground that it did not come
within the duty of the druggist to give such information to his cus-
tomer, and that the information was not only untrue, but he was
otHcious in giving it. Ht; had never verified its truth, nor even
attemj)ted to do so.

The decision was given upon the principle that the conununication
between individuals even though in good faith mu.st be fair and
impai-tial without exaggeration oi- the introduction of irrelevant or
caluuniiatory matters. If then a physician is asked by a patient as to
the status or the experience and skill of another physician in a special
branch, he must be careful only to .say what is necessary for the guid-
ance of his patient in making a choice, and, if it be necessary to enter
into details, to be reasonably certain that his information is correct.

CHAPTER IV.

The Doctor's Criminal Responsibility.

In relation to the Criminal Law the medical man undergoes some
I'esponsibility.

(a) For Operations and Medical Treatment.

The strictest guardian of the honour of the profession must admit
that there are times when death ensues from medical or surgical treat-
ment. It is inevitable that strength and vitality, and the physical
ett'eet of drugs anil surgical operations are sometimes miscalculated
and that as a consequence death results. On this point the text of
the Criminal Code is clear. (Cr. Code Sec. 57). It reads as follows :
'• Every one is ))rotected from criminal responsibility for performing
" with reasonable care and skill any surgical operation upon any
" person for his benefit, provided that perfornung the operation was
" reasonable, having regard to the patient's state at the time, and to
" all the circumstances of the case."

Section 212 is also applicable : " Everyone who undertakes (Except
" in case of necessity) to administer surgical or medical treatment, or

" t(» do any other luwful act, the tidiiij; ol" which is or mny he diin^ror-
" ous to hft', is uikIci' a h';;al <liity to have and to usf rcasonahh'
'' kiio\vh'(l(^c', skill and care in doini,' such act lUid is crii. dually rcspon-
'' siltlc, for ondttin^^ without lawful cxcusr, to dischar^O' that duty if
" duath is caused liy such oiuission."

Tlic only charge within tlu- ran;;c of possihility aj^aiiist the doctor
under these sections <d" the law is " Manslau<,diter," /. /'., tla; killiiii,' of
a human lieini,'' without inaliee afoi'ethou<^lit, or in other words, liy
reason of crindnal ignorance, netjfleot or want of skill. I'nder the
Crindnul Code then there are three essentials to protect the physieiiin :

1. Keasonalile cair.

2. Keasonahle skill and knowledge.

.'}. A reasonable openition in view of the patient's stiite at the tiiiie,
and all the circumstances of the case.

Notwithstanfling the high character of the medical profession in
this cit}' and notwithstanding the im])rolial)ilities o^' an operation with-
out the above recpureinents. it may at any time happen to a surgeon,
that ignorance or spite on the part of a third party may be the
cause of hiying mi information for manslaughter when the operation
has resulted in death. It is therefore a wise [)iinciple to adopt in all
cases of doubtful operations t call in a consultant and perform the
operation with his approval. This precaution should be obsei"ve<|
even by tlie leader of his profession.

(/>) The Doctor's ReHponsihUity for Participation in or
Concealment of ('ririic.

As I above intimated, we find the professional s»;cret in its relation
to the Crindnal Law as well. In this domain however, it is not so
much a (juestion of responsibility, for that can be guarded against,
but one concerning the physician's conscience. I lielieve that there is
no profession in the world that observes its obligations and its rules
of etiquette with greater sincerity and severity than the medical pi'o-
fession. When therefore they are face to face with what they must
feel to be a public obligation upon all men to assist in the detection of
crime, they are in a position of extreme difficulty. The fpiestion
arises more particularly in connection with abortion, poisoning and
services to the crindnal subsequently to his crime. In France the
Criminal Code (Art. 30) requires that " Every person who may have
" been a witness of an attempt against the public safety, whether
" against life or property, should give notice of it to the public prose-
" cutor." We have no such law.

The doctor is however impelled to give information respecting

crime which has comti to his notico (hiriii^r his profcssiomil work liy
two irn|>ulsos coiiipriscil within two of thi- cxcrptioiis ahovcs ^ivcji.

'i'hc (irst is : 'I'lic impulse to five him IVoin the (liin^fr of licin;^' hfl<l
to lie <iii aidt'i' an<l alti'ttor of a cimiiu' or (iii accessory after tlie fact.

The second is tlie iiiiptil^e to pi'otect society from crime ami to
punish the ci'iminai.

Under our law the distinctions lietween priii<'i|»als of the tir^t and
s(!Cond dej^n-ee, and itetween accessories hefore the fact are done away
with ; and all are exj)i'(!ssly made jtrinci[)als or parties to, and e(|ually
n'uilty of an odeiice who: (n) actually (Mjiimnt it: {!>) who do or
omit anythinL,f to help its comnnssion : (<•) who aiiet or assist at its
eonnnission, or ((/) who counsel or pi-oeure its eonnnissioii. (('r)iid\-
shaw, Cr. (Jode, Sec. 01 and ii'l).

If therefore the physician is face to face with an attempted poison-
in;4', or he has stnai^ suspicions of siieh, h'it continues his treatment
attemptiiifj; to cope with its i-esidts, ami does not se(d< to remove the
cause, he will Hud himself placed in a dangerous position legally, and
an uncomfortable position professionally.

The conclusions are nmch the samt' in cases of aliortion. The gen-
tlemen of the profession, of higher standin;^', whom I am now address
ing, at times called in in ecjusultation as a last resort, to save ^he
unfortunate woman, do not considei- the risk of the criminal law which
they incur. They act in <j[ood faith and to save a fellow heinj^, Itut at
the grave risk of being technically considered a principal in the crime.
They should remendjer always that they are guilty in the eyes of the
law if they assist in the slighti'st degi'ee, even from [)Ui'ely professional
motives and that their failure to inform nmst raise the presumpti(jn
of criminal intent.

" An accessory after the fact to an offence is one who receives, com-
" forts ()!• assists any one who has been a party to such offence in
" order to enable him to escape, knowing him to have been a party
" thereto." (Cr. Code .Sec. 63). They are not considered as principals
and are tried separately.

One does not become accessory after the fact by merelv neu'lectinj'-
to inform the authorities that a crime has );een committed, oi- i»y for-
bearing to arrest the offender. (1 Hale, P. ('., (ilS, Gl!)). The test of
an accessory after the fact seems to be that he renders tlu; principal
offender some active personal help to (^nal)le him to escape punish-
ment, as, l»y furnishing him with money or food to .support him in
hilling, or by supplying him with a horse to enable him to tly from
his pursuers, or a house or other .shelter to conceal hitn in, or by using

opoii fiin^c iin<l viitlciin- f(> jinttict Iiiiii. (I l>isli()|i, Niw i'v. K. ("diii.
}). 422: 1 lil. Cniii. .-{H.)

It is tlit'rcfoi'c cviflfiit tliiit II iloctor iiin^ no risk of a ciiiiiiMiil
cliarjjo hy tnuliii^ the wouihIs of a inurdcnT, or rt'ccivinj; »in»l toiid-
iiiU liini ill oi'iliiuii'v coiii'si' in n hospital, ami vet D-inaiiiitiu silent.
Nor is lit' iial)lt' if lie tends ami luals a woman suM'crintc from the
ctft'cts of an alioi'tioii, ulrcmfi/ nniiiih'h'il, nor ,aiii a would lie
su'cide. III! .slKMild, liowt'vrr, cxfrcisf ^rcat caution that he commits
no overt act to protect or conceal the otleiider, nor defeat the attempts
of the ofKcors of Justice to tiiid him or her. When re<|Uestt'd he
shoiiM lie careful to e-jve them all information which can assist tliem.

I do not think that it comes within the .scope of this paper to
di.scuss the (|Uestion, whether the doctor should ;;i\e information
respectin;^ crimes and attempts at crimes, which he olitaiiis in his
professional ca|)acity, when he is in no daiiifer umler the criminal law
or as iv.spects his professional reputation. That is not only a ipu-s-
tion of Medical Hthics, hut also a question of morals. It does not
come within the domain of a It^^al discussion. The nieilico-Jurists
discuss the (piestion pro and coii at ^^reat length and with j^reat
diversity of opinion Some tine distinctions are made. For instance,
Trelmchet in his " .lurispi' :dence de la Medicine," thinks that in ca.scs
of aliortion the doctor should lie silent if it lie apparently a Hrst
otieiice, and if an honourahle family would lie ruined liy the dis-
closure. Hut that if tlu' crime lie e .mnitted upon a woman of low
character liy per.sons who make a practice of it they shouM inform.
On the other hand, Mr. Justice Hawkins in his charge in the Kitson
v.s. Playfair ca.se, considered it a " monstrous" thiiiti" to inform in
either case, of course provided the doctor personally ran no risk !)}■
his silence. In this matter, however, doctors must take into .serious
consideration how far they render this crime the more prevalent and
easy of accomplishment liy their silence.

The same remark ap})lies to the case in which they posst:.ss most
valualile information for the authorities when striving to di.scover the
per[)etrator of a dastardly crime. The authoi'sai'e rightly atone in con-
sidering it a paramount duty of the medical nian,tran.scending all others,
to inform when hy doing so he is ahle to save the life of a fellow heing.

In all these ca.ses a doctor incurs no liahility for damages, lie
.should hrst he certain of his facts and reasonahle in his suspicions and
act in gootl faith and without malice. There is, under no circum-
stance, necessity to lay a public information in the Police Court. A
confidential and pi'ivate conversation with either of the Police Magis-
trates is sufficient. The doctor has fulfilled his duty to the puhlic

atitl to s(»('ii'ty ill ••v«'ry respect l»y throwing; upon tlu'in tlie renpousi-
Itility (»!' riiitlicr iiivcstiiiiitiitii iiml n criiiiiiml prosecution. In the bitter
lie appears sini|»ly us an oidinaiy witness umleioriler i»l' the ('(Uirt.

Theii' is no more nol»le profession than tho practice' of medicine
To heal the sictk is a divine missiiui. Me<lical nutii, the world over
are famous for their charity hi;;h itieals and <,'reat earnestness of
purpose to lieiiefit the human race, lint they have at times to look
lieyond the immediate circle uf their efforts and realise that they are at
the same time simple meiiiliers of that j^reat coin[)lex whole — Society^
which dumands for its existence, the assistance of one and all of us.

CHAITKK V.
TiiK Doctok'h Rksi'onhihimtv, in Kkfeken<'E to Insanity.

HaviiifT lieen re(piested to suppleii.ent a paper on " Doctors and the
Law," which lattly appeared in this journal, liy a chapter on "Insanity'
in the same connection, 1 ulndly tlo so.

The doctor's relation to insanity is two-fold. (I) His services are
always re(|uired in the continenient of the insane lor the protection of
society. (2) His expert evidence is necessary to support a plea of
" insanity " from the criminal's dock.

(\) Till- Protection of iSocicty.

The end is attained in two ways: (tt) By Conlinoinent in Asylums,
and (/>) By Interdiction.

(ii) Confinement la Asylatiif^.

The Revised Statutes of Quehec, Articles .'ilM2, sef|i|., with their
amendinj.r acts .')2 Victoria, chapter .'Jo ; ')'.] Victoria, chapter 41 ; 54
Victoria, chapter 2!) ; 5o-5G Victoria, chapter MO ; ')(i Victoria, chapter
Ml: .")7 Victoria, chapter 'Mi \ GO Victoria, chapter .S8, provide the
neces.sary formalities As I fear they would prove somewhat a (|ua<r-
inire for the non-le^jal eiKpiirer, 1 shall irive in .some detail those por-
tions which are of interest to the i^eneral iiuidical practitioner.

As}'lums are I'ulilic and Private. There are al.so what are termed
" Unlicensed Hou.ses."

I'uMic A.sylnms are those which are under the control and super-
vision of the (iovernment. They ai'c in tlii.s Province, the St. Jean
de J)ieu at JA>nn'Ue Pointe, Verdun, and Beauport, near Quebect
Privat<' Asylums are under its .supervision only. (54 \'ictoria, chapter
2!), s, 4 : 57 \'ictoria. chapter MM, s. 1.) Private A.sylums are those
licensed by Justices of tin- Peace, assembled in General Sessions.
Unlicensed houses «lo i.ot pos.sess the same powers of detention and
privileges as the above.

21
Two pliysiciiins' cfrtitinitt's an- is.st>nti>il tu tln' lulinissiitn t»f n

ptitii'lit t"> iiiiy one of thrill, siiVf ill tlu' CMSc <»!' uii I 'nliniisrd Mnusc.
Ill tlif lutttT cast' uiic fcrtiliratc siitfici-s, "uinlt'r.s|ic('iiil (•ii'<MiiiistniicfS,'
proviilcil tl'f st'cund is t'liiiiislinl w itiiiii tlircr ilnys ul'tiT at|iiii>sinii.

'I'lir ciTtiticatcs must lit' siifiicil liy incdiciil mrii, wlio an- lu-itlu'i
partners mn' liiDtlicrs, iinr in tln' nliitiuM uf t'atluT ami son to *-acli
otlicr, to till' proprietors of tlie asyimn or to the piitieiit, ami wlio have
each, separately nml peisniially, exainiiieil (he patient liel'ore the ajipli-
catioii tor his entry into the asylum. (.')7 \ictoriii, chapter ."{."l, s. (»)•

The t'oriii ol" certihcate lor admission to a I'lililic Asylum is an

follows :

IMIYSK'IAN'S CEHTIl-'ICATK.

I'lAt i: \Mi Dati:.

I, iM'ilifiii |ilivNii'iiiii duly iuitli(iri/('(l Id pnirlii-f iiinl

hitltltiiiillv pnictiHiiiK a^ siicli, (loili'cliu'i- oiMnilli thill I him imt icIhIimI to, iiur ii.s r<--
M|M'c'iN I he |ir(i|)iicl(ii'H of iis> liiiii, wit hill I lit' I (imlit ions iiioliiliilrd

liy hiw, I iiiifiTiiiiij;; insiiiK' iisyhmiN, nor wiiii (mmii' of thi- ptTHoii iniikiiiK lli«' ii|>pl'
ciitioii) nor with (iiaiiif of tho piiticnt).

Tiiiit 1 liiivc this tiay, si'paiali'l> from any other incdlcjil pnu'titioniT, visited .ind
piM'sonally I'xaniiin'd 1 lie said ; llial tlicsaid

is insane and is a piopiT pcrxui In lie cniiiincil, and tliat I liavi' fciiiiu'ti this upiiiion
from llii- followiiiK fuels, which 1 riTtify to he true (^ive the details).
Sworn hefore mc iit ^ (Signiiture)

111 is (hiyof ISII .) M.I).

(SiKiiiiture)

(^luiiity.

N.H.— (In eases of idiney or iiidiecilitN stale whet tier the idiot or imherile he (hiii
Herons, a cause of scandal, or sultjeet to eiiijept ie lits, and mention th«» facts widcli
show that he is daiiKerous or a source of scandal (."i7 Vie, <'ap. :IH, s. (I).

In addition a form containin;f the followini; (piestioiis must lie filled

in. Relatives and t'rieiids must assist I)}' <.^ivin;,r information :

1. What is t lie patient's aue to the hest of your knowledKi' < 2. Is the patient
married or sinucle ^ If married, how lonn ? How many children ? :t. Where ilo these
cliiidren live? I. What is the )iaticnfs oii^^in ? ."). .Are ids parents still lixiny?
Where do they live ^ What is ilieir name ^ (i. Where does the patient come froaW
In what municipality was he when sent to thejisylnm t 7. Mow loiijj; lias the patient
resid((l in Canada ' S. What has hcen I he pat ient's occnpat ion or I rade '. If a femah-,
I liat of lier hnsliand and fat her ! !t. What are his a|iparent means of suhsisleiice, as
well as (>f I hose w ho are ol)li).;ed liy law to sup|Mirl him ^ 10, What is the patient's
religion? II. What <le;Aree of education^ ("an he read ami write f 12. When did
t he first symptoms of sickness manifest t heni^ehes ^ Hi. How were the llrst symp-
toms of disease manifested ? II Is this t he lirsi attack? If not. i\ hen did the ot hers
occiir.and what was their diirati<in? 15. Is there any improvement or .-ijinravat ion
111 the disease or is it, stationary? 10. When did the lirst symptoms of the present
attack manifest themselves? 17. Has the patient aii\ lucid interval, and do they
occui'.'il rennlar pi'ciods? IS. On what siili.jects, or in what way is dcranjiemeni now
manifested? Is there any permanent hallucination of si^ht . taste, toncli oi' )j;eiiital
sense? 111. Has the patient shown any disixisition to injure himself or others ? 2(1.
Was it from sudden passion or i)reiuediation ? 21. Has suicide ever hcen attempted i
If so, in what way? Is the proi)ensity now active? 22. What are his habits as to

eating, sleeping or rleiiiiliness? Is there ii disposition to filthy habits, destruction
to clothing, l)reiikiiig glass, furniture, 8ccJ 2H. What relatives (including grand-
parents and cousins) have been insane, or had other nervous diseases, such as
epilepsy, hysteria, tic, eccentricity, neuralgia, chorea, alcoholism, etc. ? 24. Did the
patient manifest any particularities of temper, habits or pursuits, or predominant
passions, religious impressions J Has he been eccentric ? 2n. Was the patient ever
addicted to intemperance in the use of ardent spirits, opium, tobacco, In any form,
&c., &e. ? 2(1. Has the patient been subject to any serious bodily disease ? To epil-
epsy, suppressed eruptions, discharges or sores, or ever had any injury to the head?
27 Has restraint or confinement been employed? If so, of what kind, and how
long continued? 28. What is supposed to be the cause of the disease ? 29. What
treatment has been pursued for the relief of the patient ? Mention particulars and
the eirects ? 30. Please state any other matter supposed to have any bearing upon
the case ? .'il. For references, address of the nearest relative or guardian, or friend,
must lie given in full, with place of their residence.

Tlie re(|uireinents fur admission to a Private Asylum are practically
the same, save that it is not necessary to file answers to the above
formal questions. They, however, demand in express terms that the
two physicians shall have personally examined the person not more
than seven clear days previously to the incarceration. (R. S. Q. 3263).

The form of certificate required in this instance is as follows :

FORM OF MEDICAL CERTIFICATE.

I, , being a physician duly authorized to practise as such,

hereby certify that I have this day, separately from any other medical practitioner,
visited and personally examined A. B., the person named in the accompanying state-
ment and orders and that said A. B. is a lunatic (or an insane person, or an idiot, or
a person of unsound mind) and a proper person to be confined, and that I have
formed this opinion from the following fact (or facts) viz :

(Signed)

Name
Place of abode
Dated at this day of

one thousand eight hundred and (R.S.Q. vol. II, p. 67.)

The same certificate is required for admission to Unlicensed Houses.
(R. S. Q. 3267.)

The facts upon which the physician gives his opinion in these certi-
ficates may be obtained from his own personal observation and from
information received from others. (R. S. Q. 3190.)

No physician being an official visitor to any Private Lunatic Asy-
lum can sign any certificate for admission or attend any inmate pro-
fessionally, unless directed to visit such inmate by the person upon
whose order such patient has l)een received, or by the Provincial Sec-
I'etary, or by a judge of the Superior Court, or by the curator
appointed to the interdiction of such inmate in the Province (R. S. Q.
331.5). The penalty is a fine of !?200. (R. S. Q. 3317.)

It is almost unnecessary to point out that the physician must rigor-

ously conform to tho re{|uirein .'iits of the law rospocting his certificate,
for the purpose of avoiding fi turt- troubh'.

The EngHsh Act provides Imt a medical practitioner \v1k) gives a
false certificate, or any per son not l)eing a registered physician, sur-
geon or apothecary in acti^d jiractice, who givt-s certificates as such,
is declared to he guilty of'a misdemeanor. For any such act doin' Ky
a registered iiuMlical prac'itioner contrary to any of the provisions of
the Act (altJKnigh not leelariil to he a misdemeanor) he is suljictcd
for each proved of{enc(vto a penalty of twenty pounds.

Fortunately for thf/medical profes' Jon in the Province of <^)uehLe,
these provisions do lot exist in our Statutes No Statutory ))eiialty
is provided for the .lon-conipliance with the formalities of tiic law
respecting either ]-ublic or private asylums. Nevertheless the physi-
cian would be responsible to the patient foi- whatever damage he
might personally cause to him by his fault or negligence in this re-
spect. Apparer tly no cases have arisen in this Province in which
doctor's have 1 een sued for such damages. They might result frotii
such gross ne.'-^ligence as the absence of a, personal exan)ination or an
examination made too long previously to be reliable. In any event
it is well to follow the formalities laid down, with the greatest care.

But apart from the mere formalities of the certificate, the physician
must state fhe grounds upon which he decides that the patient is mh
idiot, imbecile or insane. There can be no great difficulty concerning
the two foj'mer, I imagine: The question is as to what facts justify a
physician in declaring that an individual is " insane and a proper
person to be confined," as required by the certificate. J do not pro-
pose to enter into a discussion of the vexed question," What is insanity ?"
I am aware that the medical profession, from its \ antage giound of
science, is able to recognize the disease, where the public and the legal
mind cannot do so.

It must be clearly borne in mind that the question, at this stage, is
not whether the patient would be responsible under the criminal law.
That arises after the act is connnitted. The question rather is, Does
society require to be protected from this individual ? Is he likely
some time or other to become dangerous to himself oi others or to
create a scandal ? It is upon these latter questions that the physician's
opinion is tlaus required.

In this matter, therefore, we are limited to such insanity as in the
opinion of the physician warrants the confinement of the individual
suffering from it.

For an enumeration of the facts wdiich ju.stify this opinion, 1 refer
to " Taylor's Medical Jurisprudence," pp. 512, 518.

Tn addition, tho formal (|iU'stioiis i^ivt-n alxixc, which our Statute
HMjuircs to 1(0 answci'od hy tlic pliyKi(!iaii on information ^ivcn him
by tlie patient's fiioiids and iclativrs, j^ivc an i<l(!a of th(( nature of
the facts, whicli our law expt'cts liiiii to certify to, as the basis of
his opinion. As these (piestions liave been <fiven in full above, it is
unnecessary to repeat them here.

A clear distinction should be drawn between the facts conuuunicated
to him by others and those ol)sei-ved by himscli'. Such expressions
as "thinks" or " believes " should lie avoided.

I have already pointed out that ureat care should be taken in fol-
lowing- all the formalitit's I'ecpiired. Xej^lect in this respect would
amount t(; le<^al fault, which entails liability in damages, sliouhl any
be caused thereby.

If, however, the law asks for an opinion, he who gives it is protected
if he has reasonable justification for it.

If the physician gives his opinion upon facts and circumstances
generally accepted liy the medical piofession as evidence of dangerous
insanity, or that which might create a scandal, he is free from liability.
Tlie farther he strays from this principle and permits his opinions to
be influenced by extreme theories of mental responsibility, the greater
danger will he incur of the courts refusing to approve it. But if the
physician acts without malice, in good faith, and upon facts which
reasonably justify his opinion, he need not fear the consecpiences
More than this it is impossible to say, when thus discussing the mat-
ter in a general manner.

(b) Interd'iclloii.

Article 325 of our Civil Code reads as follows:

" A person of full age or an emancipated minor, who is in an habit-
'• ual state of imbecility, in.sanity or madness must be interdicted even
" though lie has lucid intervals. "

The interdiction is declared by the court, judge or ])rothonotary
on the advice of a faniilj' council. Evidence is usually adduced l)efore
it, and the physician is almost invariably called as a witness. He can
speak with great freedom in the witness-box. H.- is compelled by
law to state his opinion. The family council and the judge or pro-
thonotary is not in any way bound by it. If he testifies in good faith,
without malice, to the best of his opinion and belief, he has nothing
to fear. He has no responsibilit\'.

(2) Kxpevt Evidence on the Plea of " Insanity," in Cvhidnal TriaU,
To enter into the vast field of Medical Jurisprudence on this subject

in an article of this nature, is iiiip(»ssil»le. It is interesting, however,
to state that Canada to-day is, I Ijelieve, the oidy portion of the
British Empire wliieli has the law concerning the eriininal responsi-
hility of the insane in a conerete statutoiy form.
Article ] 1 of the (Jriminal Code nads as follows:

1. " No person shall he convicted of an otfence hy i-cason of an net
done or omitted by him when labouring under natural imbecility, or
disease of the nnnd, to such an extent as to render him incapal>li^ of
appreciating the nature and (|uality of the act or onussion, find of
knowing that such act or omission wns wrong.

2. " A person lalK)urin^ under specific delusions, but in otlu'i' re-
spects sane, shall not be acquitted on the ground of insanity, under the
provisions hereinafter contained, uidess the delusion caused him to
bi^licve in the existence of some state of things which, if it existed,
would justify or excuse his act or omission.

8. " Every one shall be presumed to be sane at the time of doing or
omitting to do any act until the contrary is pi'oved."

Mr. Crankshaw, in his excellent edition of our Criminal Code, thus
comments upon this article : "It will be seen by this section that the
defence of insanity, in order to be of any avail, must be supported liy
evidence establishing that the accused connnitted the ofKcnce either •

1. While laboui'ing under natural imbecility or dise;i of the mind
to such an extent that he could not appreciate the nature and (|uality
of Ins act, and could not know that it was wrong, oi-

2. While labouring under specific delusions causing hiie thougli
sane in other respects, to believe in the existence of some state of
things which, if it existed, would justify or excuse his act.

So that, if the defence be actual in.sanitj', the mere fact of the
accu.sed being insane would not of itself be sufficient. It must be
shown also that when he committed the otience the aceuseil was
insane to so great an extent, as to render him incapalile of appreciat-
ing the nature and quality of his act and to prevent him from know-
ing that it was wrong; and if the defence be that the accused, though
sane in other respects, was when he committed the otlenoe lalioui-ing
under some delusion, it must be shown that the specific delusion undei-
which he was labouring caused him to believe that there then existed
a state of things which if it had existed in reality would have justified
or excused his act.

Taking the law therefore as here expre.ssed, a man may be insane
and still be convicted of an offence. In other words, notwithstanding
Ins insanity, he will be held responsible and punishaltle, unless his
insanity was such that it rendered, him incapable of knowing that

2()

what lie (li<l was wnjiitf ; and ulthou^li a man may ho hihourinj; under
some delusion wlien lie connuits an ott'ence, lie may still he (-(mvicted
of and punished for that oH'ence, unless the delusion wert; such that it
made him helieve that somethiiiif then existed which, if it had heen a
realit}- would have justifii'd or excused what he did, as for instance a
delusion that he was iieini;' violently attackrd ;ind in danui'i' of heiiifij
murdered, and that he was oMiLjed in self-deft nee to kill his su])])o.sed
antaj^onist."

Our law as it stanils to-day renders useless to the ex})ert in Canada,
many of thi' discussions contained in the text-hooks, 'i'o make his
evidence as to fact eflective, he must hriii};' it within the ijrinciples
thus laid down. His own particular theories as to whether, moially
speaking, the prisoner should \m: punished or not, are quite irrelevant.

If I entered more fully into the details of this question, I fear that
my remarks would exceed the limits of this paper, perhaps already
too lengthy. I therefore content myself with drawing your attention
to the text of the law and suggesting its assimilation with text- book
lore by each individual reader.