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QUERY DRUNK?
QUERY DRUNK?
135
footpath and come into contact with a foot passenger, having been compelled to avoid another foot passenger at a street corner. Conviction was followed by an immediate appeal and a rectification of the miscarriage of justice ; and in this case there were full opportunity and means for setting right the excusable LONDON: SATURDAY, JANUARY 17, 1925. error into which the police had fallen. This will usually a occur where the accused has physical excuse QUERY DRUNK? to account for an accident. Analysis of the cerebroAMONG the physical conditions investigated in courts spinal fluid, which Sir J. PURVES-STEWART finds the of law, where medical evidence is of essential import- only, or at any rate the most convincing, way of proving the presence and absence of alcoholic ance in determining the issues involved, two-namely, insanity and drunkenness-have a common feature intoxication is a drastic proceeding which can never which distinguishes them from other variations of become a popular test. Non-medical evidence for normal health. To borrow a phrase from Sir JAMES the elimination of alcohol as the cause of the PURVES-STEWART’S lucid and valuable address on symptoms observed will naturally be called to suppleAcute Drunkenness, delivered before the Society for ment scientific testimony, but such evidence is the Study of Inebriety on Tuesday last and published not always at the command of the man or woman in THE LANCET this week, neither is a simple clinical brought before the magistrate as drunk and disorderly entity like a broken bone or a consolidated lung," as or incapable. In these cases reliance must be placed to which medical evidence must almost necessarily upon the experience of the police surgeon, who fully be accepted in favour of one side or the other. And as realises that the easy course of confirming the police to the existence of insanity or of drunkenness-and view has often led to injustice. Where the accused can they may occur in combination-lay witnesses have produce any evidence that what have seemed to the their say in most cases involving legal question, and police to be the manifestations of intoxication are the give evidence upon which members of a lay tribunal, results of physical default, we may be certain to-day magistrates, jurors, or judges, consider themselves that careful note will be taken of such a defence, fully entitled to form independent and conclusive which will be complete if the misleading symptoms opinions in the light of their general experience of life. persist after the period of alcoholism should have This introduces a difficulty of which medical witnesses gone by. The second class of case where careful consideration should be fully aware, and which at times leads to conclusions which medicine cannot accept as satis- of the tests for drunkenness is required, and where factory. Sir J. PURVES-STEWART’S address should be increasing use of motor vehicles has multiplied the read in conjunction with Dr. R. T. WILLIAMSON’S examples, is the accident occurring when the driver A motor-driver has, to use Dr. paper on Mortality from Motor Traffic, which we is not fully alert. publish also this week, when it will be realised, perhaps WiLLiAMSON’S phrase, " a terrible weapon to control," more fully than before, that the huge increase of and the danger in which he may place his fellow citizens motor-drawn vehicles which has taken place in recent at any time may be less apparent than it should be years, and which shows every promise of continuing, to his mind if he has consumed alcohol in far smaller has added fresh importance to the diagnosis of quantities than would bring him under the notice of drunkenness, while introducing variations of the nature the police as a pedestrian or as the driver of a horse. of the evidence required with regard to it. The man The driver we are now considering is in normal health arrested a few years ago for being drunk when in and not able to assign the symptoms observed in him charge of a vehicle had to meet an accusation in much to any previously existing condition not caused by He is not so intoxicated, we may here also less serious circumstances when his wheels were drawn alcohol. by a horse, upon whose " horse-sense he, and the suppose, as to be helpless, disorderly, or quarrelpublic, to some extent relied ; the man who now is some. Nevertheless, his conduct as a motor-driver brought before the court for drunkenness when driving may call for the notice of the police. The customary a motor-car or lorry is more than occasionally required story of such a case is that the driver vehemently to stand a charge of manslaughter. It becomes now disputes the justice of his arrest, and denies that alcohol has anything to do with the alleged irregularity a charge of manslaughter if anyone has been killed through the alleged intoxication of a driver ; it is in his conduct as a driver. He is brought to the police potential manslaughter, visualised by the tribunal, if station, and having been seen by the inspector in an arrest by the police is believed to have averted the charge, a police surgeon examines him, and perhaps some other doctor, possibly his usual medical attendant. offence of an intoxicated driver. It is to be noted that the medical aspects and prac- In the meanwhile his condition in respect of drunkentical tests of acute drunkenness, as considered by Sir ness may have changed considerably. He may have J. PURVES-STEWART, appear to divide the cases of grown worse than when he was arrested, or he may drunkenness, presenting themselves for diagnosis have shaken off to a great extent the supposed effects through action of the police, into two main classes. of what he has imbibed. He may have been excited In the one class the man charged may be the victim and have become worse, or he may have grown calmer. of physical conditions of which the police who arrested In any case, the medical man who examines him is not him were naturally unaware, conditions of which the likely to find him as he was when first taken into symptoms are similar to those of intoxication by custody, and his condition is not that of a man who alcohol, but which, in fact, are due to entirely different has been recently helpless from drink. In these causes. An extraordinarily apposite illustration of circumstances the foundation of a definite opinion by a this sort of case is given by Sir J. PURVES-STEWART, medical practitioner may be difficult, and its enunciafurnished by a medical colleague. Here the driver of tion is not rendered easier by the attitude of some a car was suffering from chronic Eustachian catarrh magistrates, who dislike explanatory phrases, and and frequent labyrinthine vertigo. Having drunk a expect a witness to answer Yes " or No to the glass of gin and vermouth, which imparted to his question " Was the prisoner drunk ?" while neither breath the odour suggestive of alcoholic intoxication, magistrate nor doctor is agreed upon any definition he allowed the car which he was driving to mount the of drunkenness.
THE
LANCET.
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"
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136
THE PANEL PRACTITIONER’S RIGHT OF APPEAL.
Sir J. PuRVES-STEWART makes it plain that it is difficult to supply a definition of drunkenness satisfactory to medical men and at the same time convenient of application before a lay tribunal. Moreover, drunkenness which a magistrate would rightly condemn in the case of the driver of a car or lorry, differs from that which is brought to his notice in other connexions. On the whole, in view of the difficulty of defining and proving, or disproving, drunkenness in its medico-legal aspects, it is well that we can accept the estimate that in nine cases out of ten the policeman’s diagnosis is correct-we might even fix the proportion of right decisions by the constable at a higher figure. I The matter deserves serious consideration when we find how steadily and how rapidly the number of fatal accidents due to motor vehicles has increased and is increasing. Mistakes may be made and it may, at times, be the function and the privilege of the medical witness to prevent or to correct them by careful diagnosis. At others it will be his duty to see that men who drink intoxicants when they know that they have to drive should have their condition fully explained to the authorities responsible for the public safety. Dr. WILLIAMSON suggests that motorcar drivers should be fined for every fatal accident. We do not endorse this as a practical remedy, nor is it, we think, consistent with the generally accepted view of justice. We are more in accord with his opinion that all drivers should abstain from alcohol during their hours of duty, and should be required to produce a certificate that they are temperate as regards alcohol. That they should be total abstainers strikes us as a counsel of perfection impossible to carry out. The enforcement of sobriety among drivers by all possible means would tend to the protection of the public and would be possible in some degree in a class which is already compelled to be officially licensed. In any case, the prevention of charges of drunkenness is of an importance to the public at least equal to that of the accurate diagnosis of intoxication in the individual accused.
I
there is also no right of appeal, neither can an appeal be lodged against what the Department regard as the administrative act of the Minister in removing a doctor’s name from the panel. It is true that the provisions of the Arbitration Act, 1889, are applied to the hearing or inquiry which precedes the latter two classes of ministerial decision, but as regards opening the doctor’s approach to the Courts the effect of this isno more than to provide that at any stage of the proceedings the Minister may, or, if directed by the Court or judge, must state as a special case for the opinion. of the Court any question of law arising in the course of the proceedings. From the very inception of the National Health Insurance Act of 1911 the medical profession have considered that the opportunity afforded to the doctor to approach the Courts has been inadequate. Prior to 1913 the view was strongly pressed that the right of final appeal to the Courts against ministerial decisions be widely recognised. Subsequently this view It was recognised that such was somewhat modified. rights could not be unilateral and would have to be extended to insured persons, approved societies, and insurance committees, with the resultant risks to the doctor of expense and undesirable publicity; it was. also felt that the Minister, being specially conversant with the whole subject-matter and alive to the importance of adequate continuity in decisions, might be the most suitable tribunal for deciding the majority of cases. There remained, however, the belief that there should be some further right of appeal against the Minister’s decision to remove a doctor’s name from the panel, and the recent case to which reference has been made revived the demand for some check upon. possibly arbitrary or unjust action by the Minister in the infliction of a pecuniary penalty. The present view of the central representatives of the medical profession on these matters is set out in the draft memorandum of the evidence to be piaced before the Royal Commission on National Health Insurance by the British Medical Association. As may be seen from the summary of this memorandum, which we printed last week, the view is that, while the insurance doctor might justly be made liable to penalty for the wilful charging of unauthorised fees and for such general conduct as is held to be detrimental to the interests of the service, and might be subject to serious official action for the making of wilfully false statements in connexion with the records, reports, and certificates which he has undertaken to furnish, general questions of supposed neglect or lack of success or improper behaviour on the part of the doctor should be solved by the exercise of the patient’s right to change his doctor at any time, just as cases of unreasonable conduct on the part of the patient should normally be dealt with by the doctor’s right to notify that he no longer desires to be responsible for the case. If these principles are adopted it is thought that the present machinery should not on the whole beinappropriate to meet the majority of cases, if two further safeguards are provided. These are : (a) in cases of infliction of penalty, an appeal to the Courts should be possible; not only on the ground of improper procedure, as at present, but also on the ground that the penalty inflicted is out of proportion to the offence; (b) in cases of proposed removal from the panel the doctor should have the right of appeal to a duly constituted central professional committee, and that not until that committee advises the course should the Minister be able to remove a doctor’s name from thepanel. The General Medical Council would be the natural tribunal to hear such appeals if to do so came within its statutory scope.
I should
THE PANEL PRACTITIONER’S RIGHT OF APPEAL. SOME misunderstanding has arisen regarding the scope of the new rules for appeal under the National Health Insurance Acts which came into force at the beginning of the year. The amended form of Rules 1 to 11 of Order LV B of the Supreme Court, printed in THE LANCET of Jan. 3rd, refers only to appeals from ministerial decisions under Section 89 of the National Health Insurance Act, 1924, on questions relating to the liability of employed persons to be insured or to the amount of weekly contributions payable. These Rules do not in any way affect the important question of the panel doctor’s right of appeal to the Courts against ministerial decisions affecting him, or the of his right to require a to be stated for the consideration of the High Court. The position on these matters still remains as follows. Against the infliction by the Minister of a pecuniary
equally important question
case
penalty there is no right of appeal and no means of questioning the Minister’s decision, provided that the Minister in arriving at his decision has followed the prescribed procedure. It will be recalled that the Minister’s unrestricted power in this respect was recently brought into prominence by a case in which the Minister inflicted what was very widely regarded as the excessive penalty of £1000. Against any decision given by the Minister in his judicial capacity on an appeal from a decision by an insurance committee,
I
135
footpath and come into contact with a foot passenger, having been compelled to avoid another foot passenger at a street corner. Conviction was followed by an immediate appeal and a rectification of the miscarriage of justice ; and in this case there were full opportunity and means for setting right the excusable LONDON: SATURDAY, JANUARY 17, 1925. error into which the police had fallen. This will usually a occur where the accused has physical excuse QUERY DRUNK? to account for an accident. Analysis of the cerebroAMONG the physical conditions investigated in courts spinal fluid, which Sir J. PURVES-STEWART finds the of law, where medical evidence is of essential import- only, or at any rate the most convincing, way of proving the presence and absence of alcoholic ance in determining the issues involved, two-namely, insanity and drunkenness-have a common feature intoxication is a drastic proceeding which can never which distinguishes them from other variations of become a popular test. Non-medical evidence for normal health. To borrow a phrase from Sir JAMES the elimination of alcohol as the cause of the PURVES-STEWART’S lucid and valuable address on symptoms observed will naturally be called to suppleAcute Drunkenness, delivered before the Society for ment scientific testimony, but such evidence is the Study of Inebriety on Tuesday last and published not always at the command of the man or woman in THE LANCET this week, neither is a simple clinical brought before the magistrate as drunk and disorderly entity like a broken bone or a consolidated lung," as or incapable. In these cases reliance must be placed to which medical evidence must almost necessarily upon the experience of the police surgeon, who fully be accepted in favour of one side or the other. And as realises that the easy course of confirming the police to the existence of insanity or of drunkenness-and view has often led to injustice. Where the accused can they may occur in combination-lay witnesses have produce any evidence that what have seemed to the their say in most cases involving legal question, and police to be the manifestations of intoxication are the give evidence upon which members of a lay tribunal, results of physical default, we may be certain to-day magistrates, jurors, or judges, consider themselves that careful note will be taken of such a defence, fully entitled to form independent and conclusive which will be complete if the misleading symptoms opinions in the light of their general experience of life. persist after the period of alcoholism should have This introduces a difficulty of which medical witnesses gone by. The second class of case where careful consideration should be fully aware, and which at times leads to conclusions which medicine cannot accept as satis- of the tests for drunkenness is required, and where factory. Sir J. PURVES-STEWART’S address should be increasing use of motor vehicles has multiplied the read in conjunction with Dr. R. T. WILLIAMSON’S examples, is the accident occurring when the driver A motor-driver has, to use Dr. paper on Mortality from Motor Traffic, which we is not fully alert. publish also this week, when it will be realised, perhaps WiLLiAMSON’S phrase, " a terrible weapon to control," more fully than before, that the huge increase of and the danger in which he may place his fellow citizens motor-drawn vehicles which has taken place in recent at any time may be less apparent than it should be years, and which shows every promise of continuing, to his mind if he has consumed alcohol in far smaller has added fresh importance to the diagnosis of quantities than would bring him under the notice of drunkenness, while introducing variations of the nature the police as a pedestrian or as the driver of a horse. of the evidence required with regard to it. The man The driver we are now considering is in normal health arrested a few years ago for being drunk when in and not able to assign the symptoms observed in him charge of a vehicle had to meet an accusation in much to any previously existing condition not caused by He is not so intoxicated, we may here also less serious circumstances when his wheels were drawn alcohol. by a horse, upon whose " horse-sense he, and the suppose, as to be helpless, disorderly, or quarrelpublic, to some extent relied ; the man who now is some. Nevertheless, his conduct as a motor-driver brought before the court for drunkenness when driving may call for the notice of the police. The customary a motor-car or lorry is more than occasionally required story of such a case is that the driver vehemently to stand a charge of manslaughter. It becomes now disputes the justice of his arrest, and denies that alcohol has anything to do with the alleged irregularity a charge of manslaughter if anyone has been killed through the alleged intoxication of a driver ; it is in his conduct as a driver. He is brought to the police potential manslaughter, visualised by the tribunal, if station, and having been seen by the inspector in an arrest by the police is believed to have averted the charge, a police surgeon examines him, and perhaps some other doctor, possibly his usual medical attendant. offence of an intoxicated driver. It is to be noted that the medical aspects and prac- In the meanwhile his condition in respect of drunkentical tests of acute drunkenness, as considered by Sir ness may have changed considerably. He may have J. PURVES-STEWART, appear to divide the cases of grown worse than when he was arrested, or he may drunkenness, presenting themselves for diagnosis have shaken off to a great extent the supposed effects through action of the police, into two main classes. of what he has imbibed. He may have been excited In the one class the man charged may be the victim and have become worse, or he may have grown calmer. of physical conditions of which the police who arrested In any case, the medical man who examines him is not him were naturally unaware, conditions of which the likely to find him as he was when first taken into symptoms are similar to those of intoxication by custody, and his condition is not that of a man who alcohol, but which, in fact, are due to entirely different has been recently helpless from drink. In these causes. An extraordinarily apposite illustration of circumstances the foundation of a definite opinion by a this sort of case is given by Sir J. PURVES-STEWART, medical practitioner may be difficult, and its enunciafurnished by a medical colleague. Here the driver of tion is not rendered easier by the attitude of some a car was suffering from chronic Eustachian catarrh magistrates, who dislike explanatory phrases, and and frequent labyrinthine vertigo. Having drunk a expect a witness to answer Yes " or No to the glass of gin and vermouth, which imparted to his question " Was the prisoner drunk ?" while neither breath the odour suggestive of alcoholic intoxication, magistrate nor doctor is agreed upon any definition he allowed the car which he was driving to mount the of drunkenness.
THE
LANCET.
"
"
"
"
"
136
THE PANEL PRACTITIONER’S RIGHT OF APPEAL.
Sir J. PuRVES-STEWART makes it plain that it is difficult to supply a definition of drunkenness satisfactory to medical men and at the same time convenient of application before a lay tribunal. Moreover, drunkenness which a magistrate would rightly condemn in the case of the driver of a car or lorry, differs from that which is brought to his notice in other connexions. On the whole, in view of the difficulty of defining and proving, or disproving, drunkenness in its medico-legal aspects, it is well that we can accept the estimate that in nine cases out of ten the policeman’s diagnosis is correct-we might even fix the proportion of right decisions by the constable at a higher figure. I The matter deserves serious consideration when we find how steadily and how rapidly the number of fatal accidents due to motor vehicles has increased and is increasing. Mistakes may be made and it may, at times, be the function and the privilege of the medical witness to prevent or to correct them by careful diagnosis. At others it will be his duty to see that men who drink intoxicants when they know that they have to drive should have their condition fully explained to the authorities responsible for the public safety. Dr. WILLIAMSON suggests that motorcar drivers should be fined for every fatal accident. We do not endorse this as a practical remedy, nor is it, we think, consistent with the generally accepted view of justice. We are more in accord with his opinion that all drivers should abstain from alcohol during their hours of duty, and should be required to produce a certificate that they are temperate as regards alcohol. That they should be total abstainers strikes us as a counsel of perfection impossible to carry out. The enforcement of sobriety among drivers by all possible means would tend to the protection of the public and would be possible in some degree in a class which is already compelled to be officially licensed. In any case, the prevention of charges of drunkenness is of an importance to the public at least equal to that of the accurate diagnosis of intoxication in the individual accused.
I
there is also no right of appeal, neither can an appeal be lodged against what the Department regard as the administrative act of the Minister in removing a doctor’s name from the panel. It is true that the provisions of the Arbitration Act, 1889, are applied to the hearing or inquiry which precedes the latter two classes of ministerial decision, but as regards opening the doctor’s approach to the Courts the effect of this isno more than to provide that at any stage of the proceedings the Minister may, or, if directed by the Court or judge, must state as a special case for the opinion. of the Court any question of law arising in the course of the proceedings. From the very inception of the National Health Insurance Act of 1911 the medical profession have considered that the opportunity afforded to the doctor to approach the Courts has been inadequate. Prior to 1913 the view was strongly pressed that the right of final appeal to the Courts against ministerial decisions be widely recognised. Subsequently this view It was recognised that such was somewhat modified. rights could not be unilateral and would have to be extended to insured persons, approved societies, and insurance committees, with the resultant risks to the doctor of expense and undesirable publicity; it was. also felt that the Minister, being specially conversant with the whole subject-matter and alive to the importance of adequate continuity in decisions, might be the most suitable tribunal for deciding the majority of cases. There remained, however, the belief that there should be some further right of appeal against the Minister’s decision to remove a doctor’s name from the panel, and the recent case to which reference has been made revived the demand for some check upon. possibly arbitrary or unjust action by the Minister in the infliction of a pecuniary penalty. The present view of the central representatives of the medical profession on these matters is set out in the draft memorandum of the evidence to be piaced before the Royal Commission on National Health Insurance by the British Medical Association. As may be seen from the summary of this memorandum, which we printed last week, the view is that, while the insurance doctor might justly be made liable to penalty for the wilful charging of unauthorised fees and for such general conduct as is held to be detrimental to the interests of the service, and might be subject to serious official action for the making of wilfully false statements in connexion with the records, reports, and certificates which he has undertaken to furnish, general questions of supposed neglect or lack of success or improper behaviour on the part of the doctor should be solved by the exercise of the patient’s right to change his doctor at any time, just as cases of unreasonable conduct on the part of the patient should normally be dealt with by the doctor’s right to notify that he no longer desires to be responsible for the case. If these principles are adopted it is thought that the present machinery should not on the whole beinappropriate to meet the majority of cases, if two further safeguards are provided. These are : (a) in cases of infliction of penalty, an appeal to the Courts should be possible; not only on the ground of improper procedure, as at present, but also on the ground that the penalty inflicted is out of proportion to the offence; (b) in cases of proposed removal from the panel the doctor should have the right of appeal to a duly constituted central professional committee, and that not until that committee advises the course should the Minister be able to remove a doctor’s name from thepanel. The General Medical Council would be the natural tribunal to hear such appeals if to do so came within its statutory scope.
I should
THE PANEL PRACTITIONER’S RIGHT OF APPEAL. SOME misunderstanding has arisen regarding the scope of the new rules for appeal under the National Health Insurance Acts which came into force at the beginning of the year. The amended form of Rules 1 to 11 of Order LV B of the Supreme Court, printed in THE LANCET of Jan. 3rd, refers only to appeals from ministerial decisions under Section 89 of the National Health Insurance Act, 1924, on questions relating to the liability of employed persons to be insured or to the amount of weekly contributions payable. These Rules do not in any way affect the important question of the panel doctor’s right of appeal to the Courts against ministerial decisions affecting him, or the of his right to require a to be stated for the consideration of the High Court. The position on these matters still remains as follows. Against the infliction by the Minister of a pecuniary
equally important question
case
penalty there is no right of appeal and no means of questioning the Minister’s decision, provided that the Minister in arriving at his decision has followed the prescribed procedure. It will be recalled that the Minister’s unrestricted power in this respect was recently brought into prominence by a case in which the Minister inflicted what was very widely regarded as the excessive penalty of £1000. Against any decision given by the Minister in his judicial capacity on an appeal from a decision by an insurance committee,
I