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Medicine and Canon Law

Treatment of canon laws pertaining to the practice of medicine by clerics and laymen

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* Published by Encyclopedia Press, 1913.


Medicine and Canon Law. —In the early centuries the practice of medicine by clerics, whether secular or regular, was not treated with disapproval by the Church, nor was it at all uncommon for them to devote a considerable part of their time to the medical avocation. Abuses, however, arose, and in the twelfth century ecclesiastical canons were framed which became more and more adverse to clerics practising the art of medicine. The "Corpus Juris Canonici" contains a decree prohibiting secular clerics and regulars from attending public lectures at the universities in medicine and law (cap. Nam magnopere, 3, Ne clerici aut monachi). The reason adduced is, lest through such sciences, spiritual men be again plunged into worldly cares. They were not hereby forbidden to make private studies in medicine or to teach it publicly. The Council of Tours (1163), in issuing a similar prohibition, had especially in view monks who left their cloisters under pretext of attending university lectures, and in this were imitated by secular priests, who thus violated their obligation of residence. This law was extended by Honorius III to all clerics having ecclesiastical dignities. It is not binding, consequently, on the lower clergy, or on those clerics who pursue the sciences only as private studies. The penalty imposed for violation was excommunication ipso facto.

As to the practice of medicine by clerics, the Fourth Council of the Lateran (1215) forbade its employment when cutting or burning was involved. In the decree (c. Sententiam 9, Ne cler. vel mon.), it is said: "Let no subdeacon, deacon or priest exercise any art of medicine which involves cutting or burning'. This was especially prohibited to regulars (cap. tua nos, 19, De Homicid.), and they are also forbidden to exercise the science of medicine in any form (c. Ad aures, 7, de wt. et qual.). This general prohibition is extended to all clerics, inasmuch as the art of medicine is of its nature secular and, moreover, involves the danger of incurring an irregularity (c. 9, X, V, 12). Canonists, however, generally hold that in case of necessity and where danger to life is not involved, clerics can practice medicine through pity and charity towards the poor, in default of ordinary practitioners. The Sacred Congregations have on several occasions granted permission to priests to make and distribute medical confections, and allowed priests who had formerly been physicians to practice the art, but with the clause "gratis and through love of God towards all and on account of the absence of other physicians". A clause is likewise sometimes added that they may accept recompense if spontaneously offered, but never from the poor. In cases where a cleric had formerly been a physician, he may not practice medicine except through necessity, without obtaining a papal indult, which is generally not granted except for an impelling cause (Bened. XIV, "De Syn. Dioes." 1. 13, c. 10). This has been frequently insisted on in decrees of the Sacred Congregation of the Council. The regulations of some dioceses (e.g. Brixen, 1857) explicitly mention that homoeopathy likewise falls under the prohibition of exercising the medical art. Priests are reminded that it is preferable to study theology and become expert physicians of souls rather than to cure bodies, which is a secular profession. The main reason why clerics should not practice medicine arises from the danger of incurring the irregularity which is caused by accidental homicide or mutilation. Even accidental homicide induces irregularity if the perpetrator be at fault. The decretals give certain rules to determine whether such action is culpable. Thus, if a person in the performance of a licit act does not employ proper diligence and as a consequence the death or mutilation of the patient ensues, he becomes irregular if he could have foreseen the gravity of his act and if his want of diligence was gravely culpable. Again, if a person performs an illicit act from which the death of another follows, he becomes irregular even though he employed all diligence in averting a fatal result, provided there was a natural connection between the illicit act and the danger of death, so that the act was both illicit and imputable. It is to be noted that, according to this first rule, all physicians and surgeons contract irregularity for possible future sacred orders if any of their patients die through want of proper diligence or of due study of the art of medicine on the part of the physician. Hence, Benedict XIV (De Syn. Dime., 1. 13, c. 10) declares that in general when physicians wish to enter the clerical state, a dispensation should be obtained ad cautelam, as they can never certainly know that they have always used all the means prescribed by medical science in behalf of those patients who died under their treatment. According to the second decretal rule, all are irregular who practice medicine or surgery rashly, through want of proper knowledge and experience, if they thus cause the death of another. Particularly as regards clerics, this irregularity is declared to be incurred by regulars who have received tonsure and by seculars in sacred orders who practice medicine in a forbidden manner, with burning and cutting, and thereby bring about a fatal result. Irregularity is also contracted by mutilation, which consists in the severing of any principal member of the body, that is, one having a distinct and peculiar function. Even those who mutilate themselves, even if it be done through indiscreet zeal, incur canonical irregularity. As regards physicians and surgeons who are not clerics, they incur no irregularity for counselling or performing mutilation, because the canonical "defect of mildness" (see Irregularity) does not apply to them. Should they afterwards wish to receive sacred orders, they should be dispensed ad cautelam.

The ecclesiastical canons contain many and various prescriptions concerning lay physicians, which are enumerated at length by Ferraris (op. cit. infra). Thus physicians are warned that they must endeavor to persuade their patients to make sacramental confession of their sins (cap. Cuminfirmitas,13, depaenit.). St. Pius V decreed that no physician should receive the doctorate unless he took oath not to visit a sick person longer than three days without calling a confessor, unless there was some reasonable excuse. If he violated this oath, he fell under excommunication. Canonists and moralists (among them St. Alphonsus Liguori), however, declare that this is not binding in places where it never became an established usage. They also teach that even where it had been received, it applied only to cases of mortal sickness, or where there was danger that it might become mortal, and that it sufficed for the physician to give this warning by means of a third party. The canons also declare that when a physician is paid by the public community, he is bound to treat ecclesiastics gratis, though the bishop may allow them to make voluntary contributions. Likewise, the precept of charity binds medical practitioners to give their services to the poor free of charge. Physicians who prescribe remedies involving infractions of the Decalogue, are themselves guilty of grave sin. This is also the case if they experiment on a sick person with unknown medicines, unless all hope has been given up and there is at least a possibility of doing them good. Physicians are to be reminded that they have no dispensing power concerning the fast and abstinence prescribed by the Church. They may however give their prudent judgment as to whether a sick person, owing to grave danger or inconvenience to his health, is obliged by the ecclesiastical precept. They are warned that, if they declare unnecessarily that a person is not obliged to fast, they themselves commit grave sin. They also sin mortally if they attempt, without being forced by necessity, to cure a serious illness, when they are aware that through their own culpable ignorance or inexperience, they may be the cause of grave harm to the patient. Physicians who are assigned to the care of convents of nuns should be not less than fifty years of age, and younger practitioners are not to be employed unless those of the prescribed age are not obtainable. When they have the ordinary care of nuns, they are to have general license to enter the cloister, even at night in cases of great urgency. They are not, however, to be alone with the patient. Physicians who are not ordinary require special faculties to enter the cloister.

Regulars living in missionary countries have the privilege, especially by the Bull of Clement XII, "Cum Sicut", of practising medicine. To make use of this privilege, however, they must be skilled in the art of medicine and prescribe their remedies gratuitously. They must also abstain from cutting and burning (citra sectionem et adustionem). It is required, however, that regular missionaries abstain from medical practice where there is a sufficient number of proper physicians. Regulars who according to their institute have care of hospitals may not exercise the art of medicine outside of their own institutions. Indults for clerics to engage in medical practice are not ordinarily conceded until the bishop's testimony concerning the medical skill of the applicant and the want of lay practitioners has been considered. The religious superior of the regular in question must also add his testimonial concerning the moral qualities of the candidate. An indult to practice surgery is much more difficult to obtain than one for practising medicine, and it is granted only when there is no other local surgeon.

WILLIAM H. W. FANNING


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