080-NLR-NLR-V-30-DICKMAN-v.-STARR.pdf
( 286 )
Present: Garvin J.
DICKMAN v. STARE.
600-^P. C. Colombo, 42,475.
Medical registration—Massage—Manual treatment for cure of disease—Surgery—Ordinance No. 2 of 1905, s. 19 (6).
Manual treatment directed to the cure of disease, which amountsto nothing more than massage, is not surgery within the meaningof section 19 (6) of the Medical Registration Ordinance.
A
PPEAL from a conviction by the Police Magistrate of Colombo*The facts appear from-the judgment.
V. Perera, for appellant.
Basnayake, C.C., for respondent.
January 18, 1929. Gabvin J.—
The appellant, Mrs. Starr, was charged and convicted of thefollowing offence That she, not being a person registered underOrdinance No. 2 of 1905, did practice medicine and surgery for gainand thereby committed an offence punishable under section 19 (b}of the said Ordinance.
This prosecution is based solely on the facts and circumstancesof the case of a Mrs. Ashford who died on May 25, 1928. Aninquest was held and a post-mortem examination made by Dr.Scharenguivel, who expressed the opinion that the cause of deathwas hyperpyrexia (high temperature) due to malaria. Apart fromthis opinion there is no evidence that Mrs. Ashford suffered frommalaria or any other type of fever. There is certainly no evidencethat Mrs. Starr was invited to or professed to treat her for malaria.Mia« Nell, who was in constant attendance, says nothing of malariashe merely states as a fret that she took Mrs. Ashford’s temperaturethe day before she died—“ it was sub-normal.”
Assuming, though there is no specific evidence on the point, thatMrs. Starr attended this lady on the day of her death and was awarethat she had fever, there is nothing to show that she did not suggestthat a duly qualified medical man should be called in, or that sheomitted to do so herself. She never gave Mrs. Ashford any drugs,(see evidence of Miss Nell). There is therefore no evidence uponwhich Mrs. Starr can be convicted of practising medicine. Counselfor the respondent did not attempt to support the suggestion that
192&-
1929.
Oabvxn J.
Diokman v.Starr.
( 286 )
Mrs. Stair practised medicine, and a perusal of the Magistrate’sjudgment indicates that the conviction of Mrs. Starr of practisingmedicine was due to inadvertance.
The question for consideration is whether she was rightly convictedof having practised surgery.
The late Mrs. Ashford had been suffering from creeping paralysisfor about 2 years and 2 months before her death. She had beenattended by medical men in Ceylon and had also received treatmentin hospital. She was taken to England, but the doctors there saidnothing could be done for her, and on advice she returned to Ceylon.Mir. and Mrs. Ashford, on the recommendation of friends, decided totry Mrs. Starr and called on her. Manifestly Mrs. Starr was calledin to deal if she could with the paralysis, which the medical evidenceascribed to a disease of the spine. Mrs. Starr was not apd did notrepresent herself to be a physician or surgeon. Wheqfthe membersof the faculty pronounced Mrs. Ashford’s case incurable it wasdecided to try Mrs. Starr’s methods, which whether it be labelledmassage, manipulative therapy, or osteopathy, consisted of mani-pulation of the body.
The evidence as to what Mrs. Starr did consists mainly of that ofMiss Sell, who said in chief—
“ She (Mrs. Starr) used to place her on a table and manipulate
the spine ”
and in cross examination,—
“I can’t say if the.treatment amounted to more than that givenby a masseur.”
In the evidence of Mr. Ashford one finds the following passage'.—
“ I was told by my wife that the treatment Mrs. Starr gave wasa sort of massage.”
This is all the evidence on the point. It fails to establish that-the “ manipulation ” spoken to by Miss Nell was anything morethan ordinary massage. The case in a nutshell is this:—Mrs.Ashford’s case had been definitely diagnosed as a disease of the spineby duly qualified members of the profession, both here and inEngland, who admitted they could do nothing for her. The patientwas then taken to Mrs. Starr, whose treatment consisted of manipu-lation, whether as the Police Magistrate says it was well knbwn toamount to osteopathy or not. There is no evidence that Mrs. Starr-diagnosed the case as something different to what the doctors haddone, nor indeed that she was asked for or made any diagnosis at all.The fact is that she applied treatment to the spine which every-body is agreed was the seat of the trouble. That treatment is notproved to amount to anything more than massage.' Whatever
( 287 )
Mrs. Starr may have done in the case of other persons or at othertimes, this is all .she is proved to have done by the evidence adducedby the prosecution in this case.
The conviction of-a person for a breach of section 19 (b) of Ordi-nance No. 2 of 1905, upon evidence which proves nothing against himbeyond the bare fact that he treated a part of the body of anotherfor gain by manipulation which is not shown to have amounted toanything more than massage, is only possible if massage can fairlybe brought under the head of surgery.
Gabvik J.
Dichmanv.
Starr
Counsel for the respondent endeavoured to go this length despitethe evidence of Professor Smith, the Registrar of the MedicalCollege, which indicated that massage is not considered a surgicaloperation by the profession.
I am not satisfied that every form of manual treatment directedto the cureof disease, deformities, or injuries necessarily falls withinthe meaning of surgery under Ordinance No. 2 of 1905, except in sofar as such manual treatment has a definite place in the art ofsurgery and is part of the business of a surgeon. I prefer on thispoint to accept what appears to be the view of the profession thatthe manual treatment known as massage is not surgery. It is aform of treatment which, with possibly some exceptions, isadministered by persons who are not surgeons and not membersof the medical profession and who frequently, if not generally,administer the treatment unsupervised by surgeons. WhetherMrs. Starr has transgressed the law or not must be determined withreference to the facts and circumstances established by the evidence.All that has been proved is that in this case she practised a form ofmanual treatment which has not been shown to amount to anything more than massage, which is not surgery.
There is no occasion to attempt to define surgery or osteopathy,or to determine, if that be possible, the dividing line betweenmassage and osteopathy.
I must not, however, be understood, to assent to the propositionthat osteopathy is surgery within the meaning of Ordinance No. 2of 1905, or the definition of surgery upon which it is sought to foundthat conclusion.
The English cases of Hattv. Trotter1 and Macnaghien v. Douglas2are instructive. They were both actions by osteopaths to recovercharges for professional services rendered. . In each case it wascontended that the action was barred by the provisions of section 32of the Medical Act, 1858 {21 & 22 Vic. c. 90), which providesthat “ no person shall be entitled to recover any charge in anyCourt of law for any medical or surgical advice, attendance, or forthe performance of any operation or for any medicine which heshall have both prescribed and supplied unless he shall prove
1 (1921-1922) 38, Times Law Reports 30.s (1927) L. R. 2, K. B. 292.
1889.
Gabvin J.
Dickmanv.
Starr
( 288 )
upon the trial that he is registered under this Act.” In each easeit was held that the section did not apply to osteopathy so as toprevent an osteopath from recovering his charges for treatment asdistinct from diagnosis or advice. Presumably the afets whichconstitute the actual treatment were not regarded as constitutinga surgical operation. The language of our Ordinance is, of course,different. The question whether the application of osteopathictreatment apart from advice transgresses the provisions of ourOrdinance is one of great difficulty and must await judicial deter-mination if and when it is properly raised in an appropriate case,unless in the meanwhile the intention of the legislature is moreclearly declared than it has been in the existing legislation.
At the conclusion of the argument of this appeal, I intimated myview of the matter to counsel engaged in the case. Counsel for therespondent then invited my attention to the circumstance that theoffence was punishable with a fine which might extend to Be. 200and argued that the Police Court had no jurisdiction to try the case.The contention was entitled to suceed unless the Police Court hasbeen given special jurisdiction to try such cases. I was under theimpression that this Ordinance had been amended and reservedmy order to consider the matter and give counsel an opportunityto forward to me in writing any further submission which he wishedme to consider. Ordinance No. 2 of 1905 has been repealed andreplaced by Ordinance No. 26 of 1927, and all offences under thatOrdinance have been made triable by the Police Court. But thisOrdinance which came into operation on October 5, 1928, has noapplication to this case, and in the result the contention that thePolice Court had no jurisdiction to try this case must be allowed.
I direct that the proceedings be quashed and the accuseddischarged. It is for the authorities to consider whether in thecircumstances this charge should be further prosecuted.
Proceedings quashed.