The development of the interface between law, medicine and psychiatry: medico-legal perspectives in history

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M Swanepoel*
History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.1

  1. Introduction

1.1 Background

Medicine and law were related from early times. This relation resulted as a necessity of protecting communities from the irresponsible acts of impostors.2 Various legal codes dealing with medical malpractice existed in Egypt, Mesopotamia, China, Islam, Greece, Rome, Persia and India. The first documented Code of Laws ever used by human civilisation in, for example, Mesopotamia is to be found from the Law Code of Hammurabi3 – a textual source of evidence concerning the skills of Mesopotamian physicians. It was also Hammurabi who made the first declaration of human rights in history:

Anu [king of the Anunaki] and Bel [Lord of heaven and earth] called me, Hammurabi … to cause justice to prevail in the land, to destroy the wicked and evil, to prevent the strong from oppressing the weak, to go forth like the sun over the blackheaded race, to enlighten the land and to further the welfare of the people. Who made justice to prevail, and who ruled the race with right. I established law and justice in the land, and promoted the welfare of the people.4
Although individual physicians had occupied themselves with the care of the insane and had written manuals about it since the time of the ancient Greeks, psychiatry5 did not then exist as a discipline to which a group of physicians devoted themselves with a common sense of identity. Yet, except for surgery, few other specialities had come to life either. The advent of medical specialism6 was a phenomenon of the nineteenth century, but mental disorders7 as such had always been familiar and society has always had ways of coping with it.8

The origin of psychiatry actually begins with the Greeks. The Greco-Roman outlook survived unchanged until the eighteenth century and even a large part of the Greek nomenclature is still used today. While the great cultures of old, such as those of Egypt and Mesopotamia vacillated between naturalistic and supernatural explanations of diseases, the Greeks declared themselves outspokenly in favour of naturalistic explanations of mental disorders and therefore became the founders of scientific medicine and psychiatry.9 The development of the interface between law and psychiatry results in a vast area of consideration and the scope of the research (which could not aim to be complete in an article of limited scope) is therefore immense. This article discusses and focuses on the development of these fields including pre-historic times, the Nile Valley as well as the Greek and Roman Period by following (where possible) a chronological approach. Further developments with regard to the position in South Africa are discussed in a separate article. It is important to note that terminology in this article is employed as it was used by medical historians, philosophers, medical practitioners and academic writers of the specific period in time to ensure that the desire for historical accuracy is reflected.

1.2 The interface between law, medicine and psychiatry

Medicine and law have been related from ancient times.The bonds that first united these professions were religion, superstition and magic.10 The priest, the jurist and the physician were at once united in one person.11Physicians and legal practitioners in advanced societies are usually struck by the following synthesis:

Medicine is the law, and the law is medicine, and the amalgam is perfused and strengthened by the authority of tradition, religion, and the arts, such as music, the dance, and painting.
They are surprised to find that their respective professions arise from a common source in prehistoric societies, because today these streams are so sharply differentiated that physicians, psychiatrists, psychologists and legal practitioners scarcely move in the same circles or talk the same language. In early civilisations, primitive legal codes, religious doctrinesand social precepts were often ill distinguished, and laws with a medical content were often found within their context.12 In primitive societies medicine was concerned with magical power over natural objects, exercised through rites, spells and charms. In modern medicine physicians believe they are emancipated from these rites, spells and charms. Cawte13 however argues that they admit some responsibility – through the branch of psychiatry (and psychology) – for the control of emotional and behavioural disturbances. Some may find it tantalising that primitive men achieved a synthesis of medicine and justice that escapes the technocrats of today where others may accept this dissociation as the price of specialisation and progress.14
The 'law of madness' provided a way in which societies conceived madness, was (and still is) contiguous to that of medical and legal professions. At the centre of traditional medical discourse were the concepts of disease and diagnosis. This is as true of the history of psychiatry as of any other branch of medicine. The medical causes of mental disorders have long been a matter of medical debate, and the relationship between patient and doctor has been characterised as one of cure or, at least, care. Pivotal to the legal discourse, instead, were the protection of society and whether individuals were responsible for themselves and their actions. In this relatively broad understanding of the history of 'madness', the relevance of legal sources is clear. At the most fundamental level, law determines the rights of the mentally disordered patient and the legal liability of the health care practitioner. Therefore since ancient times medicine and law were conceived as spanning a large part of a person's relationships: with the care (medicine) and control (law) of their members.15 It becomes evident from the discussion in this article that often legal and medical approaches interact in co-operative ways in such a manner that it raises the question of whether they should be considered two histories or one.

  1. The development of medicine, madness and physician liability

2.1 Paleopathology16

Medical science has its origin and its foundation in the science of paleopathology. The study of the ancient evidences of disease is a phase of medical history which must depend upon paleontological data for its extension. The fact that pathological lesions, especially those on the bones, retain all of their characteristics after many hundreds of thousands and millions of years has been clearly shown and distinct evidences of disease are known as far back in geological time as the Carboniferous.17 According to Moodie18 the relation of paleontological data to medical history is based on the assumption that the manifestations of disease are the same whether seen on man or in animals. The importance of paleopathology is that it gives an opportunity of studying evidences of disease over a great period of time, and especially is this true in regard to the data offered by paleontology.

Paleopathology is thus the study of prehistoric disease and, as such, deals predominantly with skeletal remains and prehistoric populations. In its broadest sense, paleopathology deals with diseases in animal as well as human tissues, and consequently it is a field of interest to many scientific disciplines. When infection, malfunction, or traumas affect bones and teeth, the lesions or other abnormalities can be observed and studied, and in many cases the cause can be identified. The psychiatric profession finds great interest in the mutilations, scarifications, and decorations of prehistoric peoples and in burial customs and other cultural practices that have left their marks upon the skeleton or are depicted in stone or paint.19 This form of primitive surgery is discussed below.
2.2 Prehistoric medicine and beliefs20

The concept of medicine, and in particular mental disorders, during the Stone Age was a very mythical one. Mental disorders were assumed to stem from magical beings that interfered with the mind. It was universally believed that mental disorders were caused by supernatural phenomena. It represented a breakdown of the magical-religious system and was mainly attributed to a violation or neglect of ritual obligations and further by demonic possessions. Treatments for mental disorders were mostly provided by individual groups of shamans.21 Although not specialised in the sense that they earned their livelihood from their vocation, their role in society was nevertheless to represent medical and legal belief and authority. These treatments often took the form of exorcisms in which the shaman would attempt to coax the evil spirit causing the illness.22

Psychosurgery23 might be one of the oldest of all medical procedures performed by primitive societies.24 This observation is supported by physical evidence dating back to Neolithic times.25 Some anthropologists speculate that Stone Age societies performed trepanning26 on people with mental disorders to release the evil spirits or demons from their heads. Ackerknecht states that the trepanation procedure is of the highest importance (in certain contexts) as it is the "sole existing tangible evidence" of prehistoric medicine and surgery.27 Archaeologists have found numerous human skulls showing signs of trepanation.28 According to Oakley and Winfred trepanation was frequently practiced by the 'battle-axe people' who constructed chambered tombs in the Seine-Oise-Marne area of France.29 So many skulls in their tombs have been trepanned that it seems probable that the operation had some ritual significance. Roundels of human skull bone have been found in early prehistoric graves suggesting that such objects were treated as fetishes by the shamans and prehistoric men.30
It is evident from the above that evil spirits and demons were identified to be the cause of mental disorders during prehistoric times. This ancient time period is the only known period in history which lacks evidence to suggest a materialistic cause31 of mental disorders which coexisted with a mentalistic explanation32 in all the other eras. It is suggested that lack of scientific thoughts made them believe in non-scientific cause of mental disorders. It was impossible for these prehistoric cultures to blame the cause of mental disorders on something non-scientific, because they did not have developed scientific techniques to diagnose materialistic causes for mental disorders.33 DeWitt explains it as follows:
[During] [t]he Stone Age man was no less intelligent than his posterity and whether by the spoken word or the dexterous hand he was capable of producing art, but the logic of his thought was confined within the limits marked by myth and magic, oracle and miracle.34
The difficulties in making any formulation of the development of medicine, psychiatry and law of prehistoric civilisations are very great. Data on early periods are incomplete, not only because research has been limited but also because it has been directed toward special and restricted problems. It seems, however as if rules in prehistoric human societies were created through discussion. There was no 'written law' or 'holy book' from which to take guidance in for instance the regulation of the practice of shamans. It was the community that had authority - everyone and no one. No one presumed to be above others in authority. No one exhorted the group about laws laid down by any of the spirits whose presence they felt. These difficulties mean primarily that any present formulation on legal and medical developments during this time period is highly tentative.35
2.3 Western medicine36

2.3.1 The Nile Valley

The main sources for studying medical knowledge in ancient Egypt during the Pharaonic era37 are the surviving papyri,38 which first required transliteration into modern languages. Ancient Egyptians thought that diseases were either due to evil spirits or the wrath of the gods. Organic causes for illnesses were also described.39 Their philosophy of life and death centred upon the idea that these were part of a continuous cycle - the belief that life after death demanded elaborate funeral ceremonies and complex rituals in preparation for it. This belief emphasised the psychology of the dead and the nature of the personality thereafter. The individual was considered to be composed of three integral parts: First, the 'khat', which represented the body. Second, the 'ka' that represented the soul of the individual's double and was symbolised by uplifted arms, whose main function was to protect the body of the deceased and finally the 'ba', which symbolised a flying bird carrying the key of eternity. The 'ka' was believed to leave the body after death and reside in heaven, periodically visiting the burial place of the mummified body.40

Mental disorders have been recognised in Egypt for millennia from approximately5000 years ago. In the fourteenth century – approximately 600 years before similar institutions were founded in Europe – the first medical and mental institute was established, in Kalaoon Hospital in Cairo.41 Ancient Egyptians did not differentiate between mental and physical illnesses. They believed that despite their manifestations, all diseases had physical causes. Mental disorders were considered to be physical ailmentsof the heart or uterus, as described in the 'Ebers' and 'Kahun Gynaecology' papyri. These disorders carried no stigma, as there was no demarcation then between psyche42 and soma.43 Of major significance is the fact that the 'Kahun Gynaecology'papyrus included more than 30 prescriptions for a variety of diseases attributed to changes in the womb. Consequently it is concluded that the ancient Egyptians anticipated by ten centuries the Hippocratic teachings on the pathogenesis of hysteria. The similarity between some of the ethical precepts of ancient Egyptian physicians and the Hippocratic Oath shows the close connection of the origin between pre-Hippocratic medicine in Greece and Egyptian medicine. It is interesting to note that suicide was not condemned during this time.44 One of the recommended treatments for mental disorder was to turn to religion and faith. Suggestion played an important role in all forms of medical treatment, including treatment of the mentally ill, which was associated with Imhotep45, the earliest known physician in history. One of the psychotherapeutic methods used in ancient Egypt was 'incubation' or 'temple sleep'.46 The course of treatment depended greatly on the manifestations and contents of dreams, which were highly affected by the psycho-religious climate of the temple, or the confidence in the supernatural powers of the deity and on the suggestive procedures carried out by the divine healers. The principal aims of the treatment were knowledge of the sufferer's future, of the dangers that threatened him and of the evil spells that were following him. But he was also seeking a cure for his ailments. The principle of the healing dreams was attributed to Isis,47 although many other deities in Egypt also possessed the same powers.48

The reputation of Egyptian physicians49 was consistently high throughout Egypt and the rest of the Mediterranean world. Among these were Iry, called 'Keeper of the King's Rectum', a court physician who, about 2500 BC attended to diseases of the eye and belly as well as the anus. Hawi was an Old Kingdom healer of the teeth and anus. The standards of training and of practice seem to have been set by the pharaoh's physician (Great of the palace doctors), who stood at the apex of the hierarchy. Beneath him were the palace physicians (the Egyptian term is saw, meaning 'guardian'), among whom one may have been the supervisor of physicians. The others were inspectors of physicians, a group of lesser chief physicians, and a lower order of physicians comprising the great bulk of practitioners. There were also physicians who took care of workmen and a special cadre of doctors for miners (the Egyptian term is wabw, meaning 'pure of the goddess Sekhmet'). Temple physicians (the Egyptian term is swnw meaning 'doctor of people'), possibly of lower social standing, were available to all people and visited patients' homes as well. Army physicians accompanied military expeditions and gave service to soldiers in the barracks.50

Before these physicians could prescribe any treatment, they had to make a diagnosis51 by employing their powers of observation and experience in determining the nature of the illness. He would then refer to the medical papyri to determine the most appropriate course of treatment. Normally this would take the form of an unguent comprised from natural ingredients. In treatment of illnesses drugs were administered and mechanical procedures included incantations to drive out demons. Amulets could ward off illnesses of most kinds, but serious mental disorders required the exorcism of demons.52

Although Egyptian physicians were people of high standing, they were not exempted of malpractice suits. They were warned to use only the methods promulgated in authoritarian ancient treatises, for then, even if the results were poor, he would be above reproach. Therefore, if medicine was prepared and administered according to the physicians' teachings, he was exempt from all blame even if the treatment were unsuccessful. However, if he deviated away from the traditional remedies and tried to increase his knowledge through experimentation, he risked taking full responsibility if it failed. Lyons53 submits that these principles may have hindered the development of medicine in Egypt. In the Ptolemaic era,54 the Greek historian Diodorus Siculus55 even recorded legislative penalties for methodological innovation by state-supported physicians in the army:

For the [Egyptian] physicians draw their support from public funds and administer their treatments in accordance with a written law which was composed in ancient times by many famous physicians. If they follow the rules of this law as they read them in the sacred book … and yet are unable to save their patient, they are absolved and go unpunished; but if they go contrary to the law's prescriptions in any respect, they must submit to a trial with death as the penalty, the lawgiver holding that but few physicians would ever show themselves wiser than the mode of treatment which had been closely followed for a long period and had been originally prescribed by the ablest physicians. (1.82.3)56
According to Ritner legal protection by reference to "prevailing medical standards" underlies much of modern, as well as ancient medical practice. The Egyptian physician's oral diagnosis ("an illness I shall treat"; "An illness with which I shall contend"; or "an illness not to be treated") may have had similar implications as set out above.57 As this passage shows, the Egyptians considered their ancient medical texts to be sacred and binding. These texts, in fact, functioned as a kind of law code, complete with the authority to inflict severe penalties for deviants. Clearly, this Egyptian practice attracted the attention of Greek intellectuals because it illustrated, in microcosm, the collision between traditional wisdom and artistic innovation and, even more importantly, the problematic authority of written rules.58
2.3.2 Ancient Mesopotamia

The oldest medical text extant found is a cuneiform tablet59 from Mesopotamia (a land of Assyrian-Babylonian culture) and the cradle of civilisation. The most ancient known Egyptian medical writings date from a later period, but they refer back to texts far older.60 In ancient Mesopotamia, illnesses, including mental illnesses were blamed on pre-existing spirits and ghosts. Each disease was attributed to one certain spirit. As such, medicine was a part of magic. Among their primitive forebears, illness was a curse, a punishment by the gods which could be visited on the family and descendants as well as on the sinner who had knowingly or inadvertently violated a moral code. However, according to Lyons there was probably some realisation of non-spiritual causes for illness since physicians were admonished - for ethical reasons - to avoid continuing treatment for incurable diseases.61

As previously mentioned, a textual source of evidence concerning the skills of Mesopotamian physicians is to be found from the Law Code of Hammurabi. The practice of medicine was regulated by the state. Halwani62 explains that malpractice was recognised and was punishable by law. Hammurabi's Code of Law contained several texts (legislative provisions as well as medical ethical rules) showing the liability of physicians who performed surgery. Carelessness and neglect were punished since provision was made for severe penalties. Physicians were to be held liable for surgical errors and failures. Since the laws only specified liability in connection with surgery ('the use of a knife') he assumes that physicians were not held liable for any non-surgical mistakes or failed attempts to cure an ailment. The Code for example specified that if a surgeon performed a major operation on a nobleman, with a lancet (barber's knife) and caused the death of that man, or the loss of an eye, they shall cut off his hands. A slave who died because of surgery had to be replaced with another one and if he lost his eye the physician had to pay half the slave's value. Hammurabi also specified fees for lifesaving operations namely ten shekels of silver for a nobleman, five shekels for a poor man and two shekels for a slave.
Amundsen63 opines that if the medical regulations of the Code were in fact enforced we can assume that little surgery was practiced during this time. He further remarks that it is reasonable to suspect that the lack of competence on the part of the surgeons was in great part responsible for the promulgation of this type of legislation.64
2.3.3 Ancient Greece and Rome

The history of psychiatry in ancient Greece and Rome extend over a period of twelve centuries, from the time of Homer65 to the age of the later Graeco-Roman physicians and encyclopaedists.66 A study of this history is extremely difficult since the field of psychiatry scarcely existed as a defined area of medicine or as a category of knowledge on mental disorders. There was a lack of specialists in the field, no textbooks were written on the topic and no technical term for psychiatry existed. However, there are two main reasons for examining the history of psychiatry during this time period: First, the final legacy of antiquity in this area namely the writings of Galen67 and of summarisers such as Caelius Aurelianus68 and Alexander of Tralles69 provided the basic framework of medical psychiatric thought and practice that endured through the Middle Ages of Europe and into the Renaissance and persisted as the 'paradigm' for psychiatry well into the nineteenth century. Second, classical antiquity has largely defined our sense of the nature of man, of what is accurate, realistic and vivid in the portrayal of human life.70

With regard to the problems surrounding diagnosis,71 etiology72 and the treatment of mental disorders "the major models of mind and madness in Greek and Roman thought" and the "social-psychological stresses and strains in Greek and Roman civilisation" are still part of the major issues and controversies in contemporary psychiatry today. Of specific relevance is the notion of the various 'models of madness' (for example medical, social, causation and psychodynamic) as well as the closely related problems of the social and psychological context of mental disorder.73
Plato,74 in particular, appropriated the idea that philosophy is a quasi-medicine and he sometimes combined this idea with the claim that the Socratic type of dialogue was the most effective method of cure for psychical illness. Of importance is the Charmides, an early Platonic dialogue. Here, Socrates75 presented himself as a special kind of doctor, who would not cure the body without the psyche,76 and who would not attempt to cure until he has made a diagnostic examination of the psyche of the patient to see if he possessed self-control or not. The diagnostic test and the proposed 'cure' were conducted in Socrates' distinctive method of questioning dialogue.77
Hippocrates78 was one of the first writers to challenge the belief in supernatural causes of mental disorders. He coined the term hysteria and thought that the cause of this disorder was due to the uterus wandering around the body in search of children.79 He held the belief that the body must be treated as a whole and not just a series of parts. He believed in the natural healing process of rest, a good diet, fresh air and cleanliness. He noted that there were individual differences in the severity of disease symptoms and that some individuals were better able to cope with their disease and illness than others. He claimed that mental disorder had a physiological and natural basis. He described a number of mental conditions in clinical detail (currently known as phobias, mania, depression and paranoia) and was the first physician to accurately describe the symptoms of pneumonia, as well as epilepsy in children.80 He was also the first physician who believed that thoughts, ideas, and feelings came from the brain and not the heart as others of his time.
Undoubtedly these Hippocratic notions are based on bona fide scientific and clinical observations about madness with obvious concurrent physical disease. It is understandable then why the physician should have been prone to ascribe all madness to physical and physiological causes. It is evident that the history of madness in ancient Greece presents the first attempts at a classification of mental disorders. Treatment was essentially physical, sometimes psychological and always empirical. Although its successes did not measure up to those in other branches of Greek medicine it is still of considerable importance, particularly when one considers subsequent achievements in psychiatry.81
Both the Greeks and Romans recognised that the mentally disordered were capable of causing social problems as well as harm to themselves or others. Since there were no lunatic asylums, the mentally disordered became a family responsibility and the seriously impaired were restrained at home. Specific laws were passed in which the earliest mention of madmen in Rome occurs in the Twelve Tables:
When no guardian has been appointed for an insane person, or a spendthrift, his nearest agnates, or if there are none, his other relatives, must take charge of his property.82
This basic law remained virtually the only legal principle applied to madmen throughout the following nine centuries or more. The law of the Twelve Tables formed an important part of the foundation of all subsequent Western civil law.83
Furthermore, the Corpus Iuris Civilis made provision for the protection of the rights of the insane person:
The insane, therefore, was to retain not only the ownership of his property for the duration of his illness, but also his position, rank and even his magistracy, if he were a magistrate at the time the illness struck him. However, the law did recognize the juridical capacity of the insane person. He was likened to a person who was absent, asleep or even dead. Consequently, he was considered unable to make a valid will according to the principle of law. Soundness of mind, not health of body, is required of a testator when he makes his will.84
Children, because of the innocence of their intentions, and the insane, because of the nature of his or her misfortune, were excused from punishment under the Lex Cornelia. In the matter of legal responsibility or culpability for wrongdoing, the Roman law followed a principle stated in one of the opinions of Paulus, namely that an insane person, like an infant, was incapable of malicious intent and the will to insult. Accordingly he was considered immune from any action for damages.85
The ancient Greeks enforced no legal mechanisms whereby the injured patient or relatives of one who had died while under a physician's care could seek legal redress. The treatise entitled Law in the Hippocratic Corpus opens with the assertion that:
Medicine is the most distinguished of all the arts, but owing to the ignorance of those who practise it and of those who rashly judge its practitioners, it is by far inferior to all the other arts. The chief cause of this mistake is that for medicine alone, in the city-states, no penalty has been defined except that of ill repute. But ill repute does not damage those who are compounded of it … Although many are physicians in name, yet very few are so in reality.86
Amundsen87 quotes in support of this treatise a fragment of a comedy written by Pliny the Younger88 as further evidence: "Only physicians and lawyers can commit murder without being put to death for it." This brings to mind the words of Pliny the Elder, perhaps the most frequently quoted expression of this prejudice:
Additionally, there is no law that would punish capital ignorance, no instance of retribution. Physicians acquire their knowledge from our dangers, making experiments at the cost of our lives. Only a physician can commit homicide with complete impunity.89
It is interesting to note that in the lack of penalties for malpractice in Greece an important difference is noticed from the professional discipline in the present.
The Romans had developed the distinctions between dolus (evil intent), culpa (including both negligence (neglegentia) and incompetence (imperitia)), and casus (accident). Dolus falls under intentional action, but culpa and casus generally under unintentional action. Both negligent malpractice and incompetent malpractice were classified under the concept of culpa.90 A considerable overlap exists between these areas of law and Roman jurists struggled with the intricacies of the application of these principles.91 According to the rule imperitia culpae adnumeratur, ignorance or incompetence (of for example physicians) was regarded as negligent malpractice. This rule was applied where a physician performed an operation in an unskilled manner, and also where a physician prescribed the wrong medication to a patient.92 Carstens explains that the proof of medical negligence in Roman law was problematic as it is not mentioned in the available source literature. He submits that it can, however, be accepted that the onus of proof in cases of medical negligence was on the plaintiff who had to proof that the alleged negligence by the physician caused personal injury.93
The imperitia culpae adnumeratur rule of the Roman law also found application in the Roman-Dutch law when the negligent or ignorant conduct of a physician was assessed. De Groot94 commented as follows:
Dat de dood door iemands schuld toegekomen, waer onder mede begrepen is verzuim ofte onwetenheid van een geneesmeester, vroedwijf, verzuim ofte onverstand van een waghanaer ofte schipper, of der zelver zwackheid in't bestieren van schip ofte paerden.
Carstens explains that the Dutch concepts of onwetenheid, onverstand and zwackheid, in context of legal liability, were equated to the concept of fault, which implies a repetition of the position in Roman law.95 According to van Leeuwen it is disputed of whether a physician would be punishable for giving medicine to a patient, which has done him harm, or caused his death, trough the physician's neglect and ignorance.96 Because many amendments are made in law, a physician would probably have been punished according to the discretion of the court.
With regard to the imposition of severe penalties on physicians in instances where patients died as a result of medical negligence, Voet97 remarked as follows:
Dum affectare nemo debet id, in quo vel intelligit vel intelligere debet, imperitiam suam aut infirmitatem alteri periculosam futuram, consequens est ut hac quoque lege teneatur medici, pharmacopolae, obstetrics, imperite secants, perperam medicamenta venena propinantes, supponentes infundentes, pro medicamentis venena dantes.
The free translation reads as follows:
While nobody has the right to claim to do something when he understands or ought to understand that his inexperience or infirmity may be dangerous to another person, it follows that the following people will be liable in terms of this rule: physicians, pharmacists, midwives, those who without experience perform surgery, those who erroneously administer poisonous medicine or administer poison instead of medication.98

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