|A Royal College meeting in the early 19th century|
Barry I. Hoffbrand
London, United Kingdom
Since Roman times the means of payment for services rendered defined the place certain groups held in society. Thus the Roman historian Tacitus, writing in his Annals (c. AD 113), refers to a law of 210 BC stating that the services of persons exercising the liberal arts (such as philosophers, advocates, teachers, architects, and physicians) would be debased if they charged for them. The right (albeit moral rather than legal) of reward for providing higher "intellectual" services was formalised under the emperors in the honorarium. By contrast, those performing physical labour (such as surgery) were to be paid merces and only they could recover their fees at law.
In the UK only the barristers had been rigorously restricted from suing for professional fees—and this by tradition not by statute. For physicians the issue only came to the fore in the late eighteenth century when Lord Chief Justice Lord Kenyon ruled it was understood that the fees of a physician were honorary and not of right demandable. In his judgment he stated that, "It is much more for the credit and rank of that honourable body, and perhaps for their benefit also that they should be so considered." The tradition of physicians not going to court was seen by the public and the physicians as a badge of honour by a benevolent body of high minded learned medical gentlemen whose major concern was the welfare of the public and who stood above the commercial practices of other callings. There is, moreover, little evidence that the tradition of physicians being unable to sue for fees led to significant abuse by patients.
The issue of physicians' fees became significant only during the tortuous and complex controversies and campaigns for medical reform between the 1820s and the Medical Act of 1858. At that time the medical profession was still traditionally divided between (i) the physicians, dominated by the Royal College of Physicians of London, (ii) the surgeons, who had acquired a royal charter to become the Royal College of Surgeons in 1800, and (iii) a poor third, the apothecaries of the Society of Apothecaries, considered essentially shopkeepers and thus trade.
The superiority of the physicians was marked by their Oxbridge University education in the classics, literature, and philosophy—as gentlemen educated alongside the gentry and future leaders of the country. Any contact with the demeaning practice of midwifery or the trade of pharmacy was considered incompatible with the dignity of a gentleman and physician. When asked to comment on the College statute that prevented any person engaged in the practice of midwifery from being admitted to the fellowship, the then-president, Sir Henry Halford responded:
I think it is considered a manual operation and that we should be very sorry to throw anything like a discredit upon men who had been educated at the universities, who had taken time to acquire their improvement of their mind in literary and scientific acquirement by mixing it up with manual labour.
But well before the middle of the nineteenth century the hierarchical tripartite classification of the medical profession bore no clear relationship to the realities of everyday practice. Some 90% of medical men practised medicine, surgery, midwifery, and pharmacy as general practitioners. Many had no formal qualifications. Their lack of representation in the decision making that affected their practices and livelihoods, together with competition from those totally un-qualified, were major issues within the profession, driving medical reform.
The first medical reform bill was introduced in the House of Commons in August 1840 jointly by Thomas Wakley, founder of The Lancet, and private members; but it took a further sixteen bills before the Palmerston government bill finally became law as the Medical Act of 1858. In his speech to the Commons introducing his bill, William Cowper, MP, president of the General Board of Health, spoke of his aim to balance the competing forces of conservatism and radicalism in "not reviving obsolete monopolies or to unduly infringe the rights and usefulness of the corporations." About the only issue that united the old competing orders was hostility to un-qualified practitioners. The corporations did not get their way by quackery being made illegal, but they did see that it was in their interests to accept a medical register by which means the public would be able to distinguish those qualified and on the register from the un-qualified and unregistered. Cowper however proposed a strictly alphabetical register of the whole profession to expedite the eradication of its obsolete tripartite structure. He acknowledged but dismissed the objections of the College of Physicians to such, "as not placing them in a sufficiently prominent and distinctive position."
One constant feature of these parliamentary bills was to provide practitioners once registered with the legal right to go to law to recover fees. This right was warmly welcomed by the GPs and surgeons and was specifically not extended to unregistered practitioners. But it was vigorously rejected by the physicians, as forcibly expressed by the President of the College in 1847:
We consider that the physician would under those clauses be converted into a tradesman; we should feel that we had lost caste by allowing these clauses to pass.
Such was the remarkably hyperbolic response—to modern ears—of the then-president of the Royal College of Physicians Dr. John Ayrton Paris when he appeared before the Select Committee of the House of Commons on Medical Registration. "These clauses" were but a proposal to give physicians the right they had not before enjoyed namely to be able to "recover payment of charges for their attendance."
The physicians lobbied in Parliament for an amendment to Cowper's bill. This led to the introduction in Section 31 of the 1858 Medical Act of a clause empowering any college of physicians to prohibit its fellows or members from going to law for recovery of fees. The Royal College of Physicians was the only body to take advantage of it. It passed on 22 December 1858 with a new by-law stating, "That no one of the fellows shall be entitled to sue in any court of law for charges for professional aid."
The physicians thus managed to retain the distinction of a separate legal status from other registered practitioners. This by-law seems to have been generally accepted by the fellows of the College until 1932, when two younger fellows proposed its removal. They argued that the methods adopted by many fellows for safeguarding their fee did not conduce to the dignity of the College. What these methods were we can only guess. The motion was eventually lost. The fellows seemed to accept that perhaps they did acquire prestige under the bye-law and that such loss of fees as occurred was tolerable.
Sixty years later the fellows on Council clearly felt their prestige was adequate and did not need bolstering by a prohibition on taking their patients to court. On 15 December 1993, item 6 of the agenda of the council of the Royal College of Physicians addressed changes to the College by-laws. As a councillor at the time I took the opportunity to propose that by-law 155, "No fellow of the College shall be entitled to sue for professional aid rendered by him," be removed. I argued that the by-law was archaic and unfair. I was certainly not aware of just how truly antique it was. As I recall no one could suggest a single reason for preserving it, apart from the fear of adverse publicity for the College if an act of Parliament were needed for its removal. This proved not to be the case and the necessary surgery was performed painlessly out of the public eye. The by-law was forthwith excised from the College statute book.
It is perhaps a little overcynical to describe the Royal College of Physicians' stance as being mere corporate vanity. At a time when the physician could offer precious little in effective medical care, the public perception of the physician as a learned altruistic gentleman was a valuable asset in terms of doctor-patient relationship and considered a guarantee against exploitation. Lord Carnarvon, who sponsored the amended 1858 bill in the House of Lords, confided to his diary "some doubt as to the ultimate benefits" of the bill which could destabilise the culture of gentlemanly honour fostered by a profession symbolically led by the Royal College of Physicians—a body in which "has hitherto centered the respectability and the education of the profession." I hope that what remains of this image still has currency of value in an age of high-tech evidence-based medicine.
1 House of Commons Select Committee in Medical Registration. Report. London: House of Commons, 1847: Q104-109.
2 Cooke AM. A history of the Royal College of Physicians of London. Vol. 3 Oxford: Clarendon Press; 1972:806-807.
3 Willcock JW. The laws relating to the medical profession. London: 1830:111-113.
4 Digby A. Making a medical living. Cambridge: Cambridge University Press; 1994:193.
5 House of Commons Select Committee in Medical Education. Report. London: House of Commons, 1834: volume 1:17-18.
6 Waddington I. The medical profession in the industrial revolution. Dublin: Gill and Macmillan; 1984: 17.
7 The medical practitioners’ bill explained in a speech delivered by the Rt Hon W Cowper MP March 23 1858. London: James Ridgway; 1858.
8 Waddington I (see ref 6): 122.
9 Cooke AM. (see ref 2): 998-9.
10 Roberts M J D. The politics of professionalization: MPs, medical men, and the 1858 Medical Act. Med Hist 2009; 53:37-53.
Dr. Barry I Hoffbrand, MA DM FRCP, is a retired physician and past editor of Postgraduate Medical Journal and Apothecary. He is lately president of the Harveian Society of London, vice-president of the Royal Society of Medicine and councillor of the Royal College of Physicians