3PLR – YOUNGHUSBAND V. LUFTIG
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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[BASED ON POLICY, PRACTICE AND PUBLISHING LAW REPORT, 3PLR, PROTOCOLS]
YOUNGHUSBAND
V.
LUFTIG
DIVISIONAL COURT
1949 May 9, 17
3PLR/1949/4 (DC)
CITATIONS
[1949] 2 K. B. 354
BEFORE THEIR LORDSHIPS:
LORD GODDARD C.J.
OLIVER, BIRKETT, LYNSKEY AND SELLERS JJ.
REPRESENTATION
- R. Havers K.C. and Harold Brown for the appellant:
- E. Evans for the respondent:
Solicitors for the appellant: Hempsons
Solicitors for the respondent: D. Edgar Rodwell & Co.
MAIN ISSUES
CRIMINAL LAW:- Charge of wilfully and falsely using the title of “Doctor of Medicine,” contrary to s. 40 of the Medical Act, 1858 and with wilfully and falsely using the description “M.D.” – Medical Act, 1858 (21 & 22 Vict. c. 90), s. 40.How treated
HEALTHCARE LAW: Official designation of medical practitioner – Need to comply with the registration laws – Attitude of courts to default thereto
SUMMARY OF FACTS AND JUDGMENT
The respondent was a Doctor of Medicine of Berlin University. His name was not on the medical register established by the Medical Act, 1858. He practised at Brighton as an eye consultant and described himself on his notepaper and professional door plate as “M.D., BLN”. On June 11, 1948, he was charged before Brighton justices with wilfully and falsely using the title of “Doctor of Medicine,” contrary to s. 40 of the Medical Act, 1858; and with wilfully and falsely using the description “M.D.” thereby implying that he was registered under the Act.
The justices held that the respondent did not wilfully and falsely use the title “Doctor of Medicine,” and that the letters “M.D., BLN” did not imply that he was registered under the Medical Act. They accordingly dismissed the informations.
Held: To commit an offence against s. 40, a defendant must act wilfully and falsely. The presence or absence of mens rea is a question of fact for the justices. The use of the titles specifically mentioned in the first part of s. 40 necessarily implies that the person so described is qualified for registration under the Act. However qualified a person may be, if he is not registered, and he uses a title implying that he is registered, he commits an offence. A Doctor of Medicine of Berlin University commits no offence by describing himself as “M.D., Berlin.” Whether the description “M.D., BLN” was used wilfully and falsely, and whether it implied registration, were questions of fact for the justices.
Jutson v. Barrow [1936] 1 K. B. 236, considered.
[Reported by Mrs. L. A. BUCHER, Barrister-at-Law.]
CASE stated by justices for the County Borough of Brighton.
The appellant preferred two informations against the respondent alleging that he on April 1, 1948, at the County Borough of Brighton, did wilfully and falsely use the title of Doctor of Medicine, contrary to s. 40 of the Medical Act, 1858; and on the same day and at the same place, did wilfully and falsely use the description M.D., thereby implying that he was registered under the Medical Act, 1858, contrary to s. 40 of that Act. Two further informations in the same terms were preferred in respect of May 25, 1948.
The case was heard on June 11, 1948, before Brighton justices, who dismissed the informations. The appellant being dissatisfied with the justices’ determination requested them to state a case. The justices refused, but in November, 1948, the High Court ordered them to do so, and accordingly they stated the following case:-
The respondent Luftig studied medicine in Germany and passed his final examination in 1913. In 1914 he was awarded by Berlin University a diploma which entitled him to describe himself as “Doctoris Medicinoe” of which degree the letters M.D. are the recognized abbreviation. The respondent became a naturalized British subject on January 3, 1938. He practised medicine in London, Northampton, and since August, 1944, at Brighton, as a consultant on eye troubles. The respondent has written four books in the English language on eye trouble and the name of the author is set out on the title page of each book as “William Luftig, M.D.” in large block lettering, and underneath in small lettering in brackets the words “Graduate of the University of Berlin.” The respondent’s name does not appear on the current Medical Register and he is not registered under the Medical Act, 1858.
In January, 1940, the secretary of a body called the Medical Defence Union, wrote in the following terms to the respondent:
“My attention has been drawn to the London Telephone Directory in which you are described as
‘Luftig, William, M.D., Berlin, Physn.’
“As I do not find you name on the Medical Register, the use by you of the title ‘Physician’ is a direct infringement of the Medical Act and renders you liable to serious penalties. I would draw your attention to the decision in the case of Whitwell v. Shakesby (1), where it was decided that it is illegal for any person to make use of the word ‘Physician’ associated with any qualifications of any kind, unless he be an individual whose name appears on the Medical Register.
“Before taking further steps in the matter, I shall be glad to know that you will not in future make use of this title or any other description calculated to mislead the public.”
(1) (1932) 147 L. T. 157.
The respondent did not thereafter use the term “Physn.,” but continued to described himself as “M.D. Berlin” until 1944 when he moved to Brighton. Thenceforward, for the reason that he had received threatening letters, and that the wall of his house had been marked with swastikas, the respondent substituted the description “William Luftig, M.D. BLN” on his notepaper and on a professional plate put up on his door on May 25, 1948. In Brighton telephone directory the relevant entry was “Luftig, William, M.D., B.L.N.” but the full stops were added to “BLN” by error of the printer. In Kelly’s Directory the entry is “William Luftig, M.D. Berlin.”
The respondent never used the description “M.D.” without at least the qualification “BLN,” and he informed his patients either orally or in writing that he was not on the British Medical Register and that he held a Berlin degree.
In March, 1948, the appellant wrote to the respondent requesting an appointment, and received from the respondent a letter dated April 1, 1948, and headed “William Luftig, M.D., BLN”. The appellant accordingly preferred the above mentioned informations against the respondent.
The justices being of the opinion that the respondent had not wilfully and falsely used the title of Doctor of Medicine held that the informations alleging that offence should be dismissed, and being of the opinion that the respondent had used the description “M.D., BLN” and not “M.D.” simply as stated in the summons, held that the letters “M.D., BLN” did not imply that he was registered under the Medical Act, 1858, and the informations alleging that offence should also be dismissed.
The question for the opinion of the court was whether the justices had come to a correct determination in point of law.
- R. Havers K.C. and Harold Brown for the appellant:
The intention of the Medical Act, 1858, as stated in the preamble is to enable persons requiring medical aid to distinguish between qualified and unqualified medical practitioners. The Act makes provision for the registration of persons possessing one or more of the recognized medical degrees specified in sch. A. Section 40(1) makes it unlawful for anyone, unless so registered, (or, at least, so qualified) to describe himself as a Doctor of Medicine. The prohibition is absolute, and under this part of the section it is not necessary to prove that those words contain any implication of registration. Luftig’s German degree does not qualify him for registration under the Act. In the latter part of the section, the prohibition is against the use by a practitioner of a description which implies that he is registered under the Act, or that he is recognized by law as a physician, surgeon, etc. It is not a question of what the respondent intended but what was implied in and from the description; see per Singleton J. in Jutson v. Barrow (2).
The Act does not prohibit unregistered persons from practising here, but only from using certain specified descriptions or from implying registration. It is not an offence to use such descriptions about a person who does not practise, but in respect of a person who does practise, even the use of the expression “M.D. Berlin” would constitute an offence. Jutson v. Barrow (2) is authority for the proposition that the use by unregistered persons of any of the prohibited descriptions, however qualified, is contrary to s. 40.
- E. Evans for the respondent:
A review of the authorities since 1860 shows that the true interpretation of s. 40 turns on the question of wilful falsity. There are two limbs to this section: a prohibition against the use, wilfully and falsely, of certain specific descriptions; and a prohibition against the use, wilfully and falsely, of any name implying registration under the Act. In both cases the prosecution must prove mens rea; in the second case they must also prove that the word used implied registration.
In this case, as in Ellis v. Kelley (3), the description was not used wilfully and falsely.
(1) Medical Act, 1858, s. 40: “Any person who shall wilfully and falsely pretend to be or take or use the Name or Title of a Physician, Doctor of Medicine, Licentiate in Medicine and Surgery, Bachelor of Medicine, Surgeon, General Practitioner or Apothecary, or any Name, Title, Addition or Description implying that he is registered under this Act, or that he is recognized by law as a Physician, or Surgeon, or Licentiate in Medicine and Surgery, or a Practitioner in Medicine, or an Apothecary, shall, upon a summary conviction for any such offence, pay a sum not exceeding Twenty Pounds.”
(2) [1936] 1 K. B. 236, 252.
(3) (1860) 6 H. & N. 222.
That is a question of fact for the justices: Andrews v. Styrap (1).
In the statutes relating to solicitors, dentists and veterinary surgeons, the words “wilfully and falsely” do not appear. In those Acts the prohibition is absolute. In the Medical Act the prohibition is qualified by the words “wilfully and falsely.” Therefore, if a man has a genuine degree, he commits no offence under the Act if he describes himself as a Doctor of Medicine, even though he omits the word “Berlin,” because he states nothing that is false. Admittedly, the term BLN is used to divert attention from the fact that the respondent was qualified in Germany, but the expression itself puts the public on notice.
So far as the first information is concerned – wilful and false user of the title Doctor of Medicine – the court is bound by the findings of the justices on this question of fact, unless satisfied that there is no reasonable evidence on which they could form that opinion. There is abundant evidence in this case to support the finding.
On the summons relating to the use of the title “M.D.”, that was qualified by the letters “BLN”. The justices were entitled to take into consideration that the respondent was a man with thirty-five years’ reputation who was clearly not out to defraud the public in any way but only to protect himself from a nuisance. They were entitled to come to the conclusion that there was no wilful falsity in the use of the term “M.D., BLN,” and that it did not imply registration under the Act.
Counsel referred to a number of cases which are reviewed seriatim in the judgment.
Havers K.C. in reply. Upon the major question of interpretation of s. 40, the object which the statute has in mind is to distinguish between qualified and unqualified persons. Unless a man possesses one of the qualifications specified in the Act, he is unqualified. Parliament has not imposed on the courts the burden of deciding what foreign qualifications, if any, are good.
Some of the earlier cases are at variance with Jutson v. Barrow (2) as to the meaning of “wilfully and falsely.” In that case it was argued that mens rea was necessary, but the court held the contrary: see per Lord Hewart C.J.(3).
If a man has a non-registrable title and, knowing it to be so, he uses it, he commits an offence. This respondent, as he frankly says, used the term “BLN” for the express purpose of concealing from the public his German degree. This is a question of construction of a document – a piece of notepaper inscribed “M.D., BLN” – and is a question of law for this court to determine. But even on the footing that it is a question of fact, the justices’ decision is contrary to the evidence, and this court can interfere.
The vital question is whether a person who holds a foreign diploma entitling him to the degree of doctor of medicine can practice in this country and describe himself as “M.D.” or use the title “Doctor of Medicine.”
MAIN JUDGMENT
May 17.
THE JUDGMENT OF THE COURT WAS READ BY LORD GODDARD C.J.
The respondent was charged before a Court of Summary Jurisdiction for the County Borough of Brighton firstly for that he on April 1, 1948, did wilfully and falsely use the title of Doctor of Medicine contrary to s. 40 of the Medical Act, 1858, secondly that on the same day he did wilfuly and falsely use the description “M.D.” thereby implying that he was registered under the Medical Act, 1858, contrary to s. 40 of the said Act. There were also two similar summonses alleging the same offences on May 25, 1948. The two offences charged on each day are, in fact, alternative, and in respect of each day to which they relate the respondent, if convicted, would only be liable to one penalty. The informations were dismissed.
The material facts are that on April 2, 1948, the appellant who was a representative of the Medical Defence Union received from the respondent a reply to a letter which he had written requesting an appointment. The letter bore on the left-hand corner the words “William Luftig, M.D., BLN”. The letter was written from 44 Preston Park Avenue, Brighton, where the respondent lives and carries on the practice of consultant on eye troubles. On May 25 there was fixed to the door of these premises a professional plate bearing the words and letters “William Luftig, M.D., BLN”. The respondent’s name appeared in the telephone directory for Brighton with the same letters after his name but in that directory full stops appear after each of the letters, while on the letter paper and plate there were no stops. The magistrates find that the stops in the directory were a printer’s error and were not on the entry form completed by the respondent. In Kelly’s Directory for the district his name is given as “William Luftig M.D. Berlin.” The justices found that the respondent used the abbreviation “BLN” on his plate and notepaper since coming to Brighton in 1944 and that he had not used the word “Berlin” because he had received threatening letters and swastikas had been marked on the wall of his house. The respondent had studied medicine in Germany and passed his final examination in June, 1913. In August, 1914, he had been granted by the Minister of the Interior “Approval as a Physician” and in November, 1914, the Frederick Wilhelm University of Berlin conferred upon him “the immunities and privileges ornaments and honours of Doctor of Medicine.” The diploma was produced and there is no doubt that the magistrates considered that it was a diploma granted by a genuine university. It would be convenient here to say what the true implication is that attaches to the use of the expression “Doctor of Medicine” or its recognized abbreviation “M.D.” The term “Doctor” is now commonly used to mean any medical practitioner, but when that word is used in conjunction with some particular branch of learning it means one who in any faculty has attained to the highest degree conferred by a university. We take this from the Oxford Dictionary. So a person who describes himself as a Doctor of Medicine represents that he has had this degree conferred upon him by a university as the result of competent examination. That there are bogus concerns masquerading as universities who sell bogus degrees may well be true and if the only title of a person who describes himself as a Doctor of Medicine is a piece of parchment and a hood which he has bought and paid for from some commercial concern the courts will know how to deal with such an imposture. It was further found that in January, 1940, the secretary of the Medical Defence Union had written to the respondent drawing his attention to the London Telephone Directory in which he was described as “Luftig, William, M.D. Berlin, Physn.” The letter informed the respondent that the use by him of the title “Physician” was a direct infringement of the Medical Act and rendered him liable to penalties. The letter went on to say that “the case of Whitwell v. Shakesby had decided that it was illegal for any person to make use of the word ‘Physician’ associated with any qualifications of any kind unless he be an individual whose name appears on the Medical Register.” Whether that is an altogether accurate description of the decision in the case referred to is one of the matters which we shall have to consider in the present case, but having received that letter the respondent answered it saying that he would take the necessary steps to see that the offending word “Physician” or its abbreviation did not appear again in the directory and it appears that thereafter he did not describe himself as a physician.
The respondent is not registered under the Medical Act, 1858. The justices dismissed the informations and have stated their opinion in these terms: “We, being of the opinion that the respondent had not wilfully and falsely used the title of Doctor of Medicine held that the informations alleging that offence should be dismissed, and We being of the opinion that as the respondent had used the description ‘M.D., BLN’ and not ‘M.D.’ simply as stated in the summons we held that the letters ‘M.D., BLN’ did not imply that he was registered under the Medical Act, 1858.” On an application being made to the justices to state a case they refused to state one but this court directed them to do so. They apparently considered that the application was frivolous and that their decision raised a question of fact alone. The justices may be surprised to know that on the case coming before the court it appeared to present features of such difficulty and importance that it was ordered to be re-argued before a full court. While not imputing any contumacy to the bench, their refusal to state a case when requested to do so is to be regretted as it has involved the parties in considerable extra expense.
Before considering the law applicable to the case, we think it well to emphasize that a Divisional Court of five judges has no greater powers than one of three or even two. This court is bound by its own decisions as is the Court of Appeal whatever the number of judges that may constitute it: see Police Authority for Huddersfield v. Watson (1). The principles of Young v. Bristol Aeroplane Co., Ltd. (2) apply equally to this court. It was there held that “The only exceptions to this rule are: (1.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2.) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion, stand with a decision of the House of Lords. (3.) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam,” that is to say, that a case or a statute has not been brought to the attention of the court and the decision has been given in ignorance or forgetfulness of the existence of that case.
(1) [1947] K. B. 842, 847.; (2) [1944] K. B. 718.
The case most relied upon by the appellants here was Jutson v. Barrow (1), and it was because the court before which this case came in the first instance thought there were certain dicta in that case which might be in conflict with or go beyond certain earlier decisions which were apparently not cited that they directed a re-argument, and when re-argument is directed it is often desirable that it should take place before a full court.
We now turn to a consideration of the relevant Statutes. The Medical Act, 1858, is entitled “An Act to regulate the Qualifications of Practitioners in Medicine and Surgery,” and the preamble states that it is expedient that a person should be able to distinguish between qualified and unqualified practitioners. The Act then sets up a General Council and provides for the registration of medical practitioners. The schedule sets out the persons who are entitled to be registered and under that Act, Doctors of Medicine of a foreign university could only claim to be registered if they had been practising in the United Kingdom before October 1, 1858. By s. 34 it is provided that the words “legally qualified Medical Practitioner” or “duly qualified Medical Practitioner” or any words importing a person recognized by law as a Medical Practitioner or member of the medical profession when used in any Act of Parliament shall be construed to mean a person registered under this Act. Section 40, which is the material section in this case, provides that “Any person who shall wilfully and falsely pretend to be or take or use the name or title of a Physician, Doctor of Medicine, Licentiate in Medicine and Surgery, Bachelor of Medicine, Surgeon, General Practitioner or Apothecary, or any name, title, addition or description implying that he is registered under this Act or that he is recognised by law as a Physician, or Surgeon, or Licentiate in Medicine and Surgery, or a Practitioner in Medicine, or an Apothecary, shall, upon a summary conviction for any such offence, pay a sum not exceeding Twenty Pounds.” The qualifications for registration were extended by the Medical Act, 1886, which entitled a person holding a recognized foreign diploma granted in a foreign country to which the Act might be applied by Order in Council to be registered, but no question arises under this Act as it was never applied to Germany. Provision has been made by the Medical Practitioners and Pharmacists Act, 1947, enabling the Council to register certain foreign medical practitioners if they see fit, and subject to certain conditions, which it is unnecessary to set out as no application had been made under this Act by the respondent for registration.
(1) [1936] 1 K. B. 236.
The Medical Acts do not prohibit any person from practising medicine or surgery. The Act of 1858 confers certain privileges on registered persons, for instance that none but registered persons can recover their fees in a court of law or sign a certificate required to be signed by a medical practitioner. Unregistered persons are prohibited from holding appointments at hospitals, infirmaries or dispensaries which are not supported wholly by voluntary contributions, from which it is clear that an unregistered medical man may hold an appointment in a voluntary hospital. What is prohibited by the Act is the use of certain titles such as Physician, Doctor of Medicine and so forth which of themselves imply or are to be taken to imply that the person using them is registered, or any name, title, addition or description which would give rise to a similar implication. It is the opening words of this section that have given rise to much of the difficulty which surrounds the question. They are: “Any person who shall wilfully and falsely pretend to be or take or use the name or title,” etc., and it is certainly significant, as Mr. Evans for the respondent pointed out, that Acts dealing with other professions such as solicitors, veterinary surgeons and dentists do not contain the words “wilfully and falsely.” Mr. Havers contended firstly that the title “Doctor of Medicine” could only be used by a person who was registered. If that be so, it would follow that it would be an offence for the Regius Professor of Medicine at one of our great universities who might not have taken steps to get himself registered, having no intention of practising but of leading an academic life, to describe himself as a Doctor of Medicine. If he wrote a treatise, he could not so describe himself, nor could a professor of international reputation, who came to this country and read a paper before various learned Medical Societies and afterwards published it, describe himself as an “M.D.” though that degree had been conferred upon him by the University of Paris, Vienna, Harvard, or any other of the great teaching institutions of the world. An alternative submission by Mr. Havers was that the Act at least prevented a man from using the title unless he was qualified to be registered, but we can find no words in the statute which would support that contention. A man can only be registered if he possesses certain qualifications but if he uses a title which would imply that he is registered it appears to us that he would commit an offence if he in fact is not registered, however qualified he might be.
The first question that we have to decide is whether a person upon whom the degree of Doctor of Medicine has been conferred by a genuine and not a bogus university is entitled to describe himself as a Doctor of Medicine with or without some qualification which would indicate the origin of his doctorate, and would not imply that it was one which would qualify him for registration in this country, or whether, not being registered in this country, he is absolutely prohibited from so styling himself. In Jutson v. Barrow (1), the case most relied on by the appellant, Lord Hewart C.J. said, “the effect of this section is to prohibit the use of any of these names and well-known descriptions except in cases where they are law fully employed. If one of those well-known professional descriptions is employed, I think a defendant cannot be heard to say that the name which he employed did not imply that he was registered or recognized in the sense described by the statute” By “recognized,” his Lordship apparently meant “qualified.” Humphreys J. in the same case said, “It appears to me that the prohibition against the use of the named words and titles or of any other titles having the same implication is absolute.” These are two of the passages which led the court when the case was first opened to think that a close examination of the authorities was necessary. Neither of the judgments to which reference has just been made deal with the words “wilfully and falsely,” though Singleton J. did refer to those words in his judgment. The one matter which distinguishes Jutson v. Barrow (1) from this case is that the practitioner in that case was not only unregistered, but had no medical qualification or degree at all. We have had the advantage, through the industry of Mr. Evans, of being referred to several cases which were not apparently cited or at any rate considered by the court in Jutson’s case(1), and it is necessary for the court to review them all for the purpose of deciding the present case.
(1) [1936] 1 K. B. 236, 243.
We now turn to the authorities and it would be convenient to take them in chronological order. The first case is Ladd v. Gould (1). In that case the defendant called himself a surgeon and mechanical dentist, and the court held that it was for the justices to decide as a question of fact and not of law whether by the use of the word “surgeon” coupled with the words “mechanical dentist” or such like titles was an offence against the statute. The magistrates dismissed the information and Cockburn C.J. said that he should have come to the same conclusion, but the important thing from the point of view of this case is that the Lord Chief Justice said: “I do not think there was any falsehood, or any intention to deceive which was necessary in order to bring the case within the Act. That was also the opinion of the magistrates, though they might have come to a different opinion.” That was a case, it will be observed, which was heard within two years of the passing of the Act, and the court held that it was necessary there should be falsehood or the intention to deceive.
The next case was heard later in the same year in the Court of Exchequer, Ellis v. Kelly (2). The remarkable feature of this case is that it is also reported in 3 Law Times, page 331; in 6 Jurist Reports, New Series, page 1113, but the reports of Bramwell B.’s judgment in those two reports differ very materially from the report in Hurlstone & Norman, and from each other, and the report in 30 Law Journal, Magistrates’ Cases, page 35 is also somewhat different. A perusal of those reports, however, enables the court to see the ratio decidendi, and it is that which is binding and not the expressions used. In that case the respondent was a Member of the Royal College of Surgeons and a Licentiate of the Society of Apothecaries. He was possessed of a German Medical diploma, and called himself “Dr. Kelly,” and it was said that that was tantamount to using the title of Doctor of Medicine and so was an offence under the Act, as he was not registered as such. It is difficult to believe that in these days when, as we have already said, the term “Doctor” is commonly used to denote a medical practitioner, without regard to his particular qualifications, that there would be a prosecution in such circumstances, but the importance of the case is that it is clear that the reason why the court held that there was no offence was that, believing that he was entitled to use the title of Doctor, the justices were justified in finding that he had not done so wilfully and falsely. That is clear from Bramwell B.’s judgment whichever report is looked at, and Wilde B. said the only question was the meaning of the words “wilfully and falsely.” He said the defendant had a German diploma which he might reasonably believe entitled him to describe himself as he did, and that it was a question for the magistrates whether he used the particular description knowing he was not entitled to it and with intent to deceive the public.
Then comes Andrews v. Styrap (1). There a druggist added the letters “M.D.” after his name in the bills that he sent in for professional attention and medicine. He was purporting to practice medicine and he claimed to describe himself as an M.D. on the ground that he had a diploma from an American University. He had never been in America nor undertaken any examination in order to obtain the diploma. The court upheld the conviction and obviously did so on the ground that this was a bogus degree. It was said there was ample evidence that the appellant acted wilfully for he did it on purpose and falsely because he pretended thereby to be on an equal footing with any regularly bred and registered physician or M.D. in England and must have known that his diploma was in fact utterly worthless and valueless as an indication of the possessor’s merit.
In Carpenter v. Hamilton (2), the defendant kept a shop where he habitually dispensed medicine and gave advice. He exhibited in his window a diploma in which he was described as a Doctor of Medicine of the Metropolitan Medical College of New York in the United States of North America of the validity of which, beyond production, he gave no further proof. The magistrates dismissed the information holding the respondent did not wilfully and falsely pretend to use the name of Doctor of Medicine contrary to the section as he only represented himself to be and used the name of Doctor of Medicine of this New York College. The court upheld the dismissal, Cleasby B. saying, “how is it possible to make out a charge of falsely pretending to be something when the only evidence is that the man pretends to be what he really is?” To reconcile these two cases, we think that in the latter the justices must have considered that the college was a genuine and not a bogus concern.
Davies v. Makuna (1), is a case in which the section had to be considered in connexion with an action between the defendant, a duly qualified medical practitioner, who had agreed with the plaintiff who was not duly qualified, to serve the plaintiff as an assistant. Pearson J. in the course of his judgment said: “No doubt it is difficult to understand the exact limit of s. 40 and I do not mean to say that I am absolutely certain what is the proper construction of it. But, looking at the preamble of the Act and at s. 32, I think the meaning is, that in order to incur the penalty a person must wilfully and falsely take or use one of the names of titles therein mentioned in such a manner as is calculated to deceive the public,” and when that case went to the Court of Appeal, Cotton L.J. appears to have agreed with that construction.
In 1891 came Reg. v. Aston Justices (2). That case raised the question whether an L.S.A. qualified and registered as such was entitled to describe himself untruly as a Physician or M.D. He contended that he possessed a diploma from some institution in the State of Indiana, and so the court said he was an L.S.A. with an American degree. The court held that he was properly convicted, holding that the letters M.D. would imply that he was registered under the Act, and considered that he had used those letters wilfully and falsely.
In 1894 Steel v. Ormsby (3), was again a prosecution for unlawfully assuming the title of M.D. The defendant was a miner who had visited sick persons and supplied them with medicine. He signed death and other certificates, adding the letters “M.D.” and “B.C.” after his name and claimed to be entitled to do it by reason of a certificate granted by a Joint Stock Company called the General Council of Safe Medicine, Ltd., which purported to train and educate its members in medical botany and organic magnetism. The magistrates found that the defendant had wilfully and falsely taken the title of “M.D.” thereby implying that he was registered. Wright J. in giving judgment said the section required a statement to be made by the defendant false in fact and known by him to be so and held that there was evidence that the man had falsely described himself as M.D. Collins J. concurred and said that some doubt raised by expressions of Bramwell B. in Ellis v. Kelly (1) had been removed by later cases. It was a question of fact. The defendant having signed certificates which can only lawfully be given by medical practitioners, describing himself as M.D., and having no diploma or degree but some certificate given by a bogus institution, there was evidence on which the magistrates could find as they did.
The next case is Reg. v. Lewis & Frickhart (2) and Reg. v. Lewis & Bridgwater (2). These were rules calling upon the stipendiary at Cardiff to state a case, he having dismissed summonses against both the defendants for using the letters M.D. and he had refused on the ground that the applications were frivolous as he had dismissed the summonses on questions of fact only. Eliza Frickhart was an M.D. of Zurich University. Her name had been on the Medical Register, but had been removed therefrom for professional misconduct. The informant who was a retired medical man knew she was not registered when he consulted her, and the magistrate dismissed the information. In Bridgwater’s case(2), the defendant described himself as “Dr. Bridgwater, M.D., U.S.A.,” and in the consulting room was hung up what purported to be a diploma of some American University. The magistrate dismissed the summons on the ground that there was no proof of a false pretence for the defendant merely held himself out to be what he was, an M.D. of some American university. The court discharged the rules in both cases. In Frickhart’s case(2) Collins J. said, “there was no proof before the magistrate of a false pretence.” In Bridgwater’s case(2) Grantham J. said that no case yet had gone so far as to decide that the use of M.D. with other letters constituted a holding out that the defendant was a registered M.D., and as the magistrate had negatived any false pretence there was no ground for granting the rule. Collins J., concurring, said “the learned magistrate has found that the defendant did not in point of fact pretend that he had a registrable degree, and if so, the magistrate would be perfectly right in the conclusion at which he has arrived.” He concluded his judgment by saying: “On the cases as they now stand there is a complete fog. It is impossible to say whether this is a question of law or of fact.”
Hunter v. Clare (3), is a case in which an L.S.A. duly registered described himself as a physician and surgeon and was prosecuted for wilfully and falsely pretending to be and taking and using the name and title of physician contrary to the section. The court quashed the conviction and Channell J. having said that he thought, though not without doubt, that the word “physician” is used in s. 40 in a technical sense and that in that sense the appellant was not a physician, went on to say: “Then, did the appellant ‘wilfully and falsely’ describe himself as a physician? On that point Ellis v. Kelly (1) is a distinct authority.” He said the difference between Ellis v. Kelly (1) and Andrews v. Styrap (2) was that in the former case there was a foreign qualification, but a genuine one, and in the latter only a bogus diploma, and he thought that the conviction should be quashed for, although the appellant incorrectly described himself as a physician, he did not do so “wilfully and falsely” upon the grounds explained by the court in Ellis v. Kelly (1). He concluded his judgment by saying: “The justices ask us two questions: the first, ‘Whether or not the appellant holding the title of L.S.A. and being registered as such is authorized to take and use the name and title of physician in the manner the appellant so used it,’ we answer in the negative. To the second, ‘Whether on the facts stated we were right in finding that the appellant so described himself wilfully and falsely within the meaning of the section,’ we say that the justices were wrong and on that ground we quash the conviction.”
From these cases it will be seen that there is an unbroken line of authority from 1860 to 1899, supported in the later part of that period by judges of the eminence of R. S. Wright J., Henn Collins J. and Channell J., that to commit an offence the defendant must have acted wilfully and falsely and that it is for the magistrates to decide whether he has done so, and also that he does not commit an offence if he honestly believes that he was within his rights in describing himself as he did. He must of course have a reasonable ground for his belief. A person who has passed no examination and has received no qualification from a genuine teaching body cannot adopt one of the titles mentioned in the section and be heard to say that he believed he had such skill as would entitle him so to describe himself. We can sum up this part of the case by saying that there must be mens rea and the presence or absence of that state of mind must be tested on ordinary principles and in the light of common sense. “Actus non facit reum, nisi mens sit rea” is a cardinal doctrine of the criminal law. No doubt the legislature can create offences which consist solely in doing an act whatever the intention or state of mind of the actor may be. Common instances are provided by many of the offences created by the Defence Regulations. It was an offence, for instance, to be found within a prohibited area. It was no defence for a person found there to say that he did not know or even at the time had no means of knowing that his presence was prohibited. Overriding considerations of safety placed on citizens the duty of finding out whether a place was a prohibited area or not. Of late years the courts have been so accustomed to dealing with a host of offences created by regulations and orders independent of guilty intention that it is desirable to emphasize that such cases should be regarded as exceptions to the rule that a person cannot be convicted of a crime unless he has not only committed a forbidden act or default but also that a wrongful intention or blameworthy condition of mind can be imputed to him. Whitwell v. Shakesby (1), is not we think in any way in conflict with the decisions that we have quoted. The defendant there had described himself as an osteopathic physician and surgeon. He was an honorary member of the Incorporated Association of Osteopaths Limited and the holder of a certificate from that company, but there was no evidence as to what, if any, examination had to be passed in order to obtain the grant of a certificate. The magistrate had refused to convict on the ground that the respondent did not use the title falsely within the meaning of the Act. It seems to us that the decision of the court who allowed the appeal and found an offence proved turns on the point that the defendant knowing that he had no qualification as a physician or surgeon must be held to have used that description falsely. That case was much relied on by the court in Jutson v. Barrow (2). We are not expressing any doubt as to the correctness of the decision in the latter case because there again the defendant had no medical training, nor was there anything in the case to show that he could have believed that he was entitled to use the word “surgeon” though we are not in agreement with all the dicta used in the judgments.
We have now to apply the law so far as we can gather it from these many cases to the present. The respondent holds a genuine degree of Doctor of Medicine granted by a foreign university. There is no reason therefore why he should not use that title and the justices were amply justified in finding that he did not use it wilfully and falsely; but he must not use that title so as to imply that he is registered in this country because in our opinion the section contemplates that the use of the words Doctor of Medicine, Physician, Surgeon or other titles specifically mentioned in the first part of the section carries the necessary implication that the title he is using is one of those mentioned in the schedule to the Act. If, therefore, the respondent described himself, as he at one time did, as “M.D., Berlin,” we think it is clear on the authorities that he committed no offence and that he is entitled to use that description. He is describing himself there as what he is and the addition of the word “Berlin” shows that he is not claiming to be possessed of one of the degrees mentioned in the schedule and does not therefore represent that he is registered. The real difficulty in this case is that at Brighton he used the abbreviation “BLN,” and he did so on his own admission for the purpose apparently of concealing the fact or at any rate of diverting attention from the fact that his degree was obtained in Germany. The cases, however, oblige us to hold that it is for the magistrates to consider whether in so doing he has acted wilfully and falsely and we must take it that they have held he did not, and they have further held that “M.D., BLN” does not imply that he was registered. They might have decided the latter point the other way and it is to be hoped that the respondent will not in future use that abbreviation; he may well incur penalties if he does so.
For the reasons given we think that on this point we are bound by the findings of the magistrates and as we cannot say there was no evidence upon which they could find as they did, it follows that the appeal must be dismissed. In conclusion, we may express our concurrence with what Collins J. said in Bridgwater’s case(1) that the cases are in a complete fog. We hope that this review may tend to some extent towards dissipating it, and we venture to think that the time has come when the position might be clarified by further legislation.
Appeal dismissed.
(1) 60 J. P. 392.
[1949] 2 K.B. 354
