Medical Licensing

Summary

Medical licensing is the legal regulation of who may practice medicine, enforced through examinations, credentials, and penalties for unlicensed practice. The history of licensing reveals a persistent tension between protecting public safety and protecting professional monopoly. Henry VIII’s 1511 Act complained that common artificers were boldly practicing medicine; the College of Physicians received its charter in 1522; and the Society of Apothecaries was incorporated in 1617 with a seven-year apprenticeship requirement. In America, licensing followed a radically different trajectory: between 1826 and 1851, numerous states repealed existing licensing legislation, reflecting egalitarian democratic values, and by the Civil War no effective licensing existed. The re-establishment of licensing in the late nineteenth century was intertwined with the professionalization of medicine, the rise of laboratory science, and the deliberate exclusion of sectarian competitors. The AMA’s 1935 decision to exclude all sectarian institutions from its approved list effectively ended eclectic and homeopathic medical education.

Definition and Scope

Medical licensing encompasses the legal requirements governing who may practice medicine, including educational prerequisites, examinations, registration with state or national bodies, and penalties for practicing without authorization. The scope extends from the English guild system (physicians, surgeons, apothecaries) through American state licensing boards to modern credentialing and board certification. Licensing is inseparable from questions of professional identity, economic competition, and the definition of what counts as legitimate medical knowledge.

Historical Development

English Origins

Henry VIII’s 1511 Act complained that common artificers, smiths, weavers, and women were boldly practicing medicine and surgery without any learning, to the grievous hurt of the king’s subjects.(King, 1958) The College of Physicians, established by acts of Henry VIII in 1522-23, was largely credited to Thomas Linacre and held a monopoly on the practice of medicine within London and its environs.(King, 1958) Oxford and Cambridge graduates enjoyed special exemption from College examinations and could practice throughout England without the formal scrutiny required of others.(King, 1958)

The Society of Apothecaries was founded separately in 1617 by royal charter of James I, with 114 original members, requiring a seven-year apprenticeship and examination before anyone could keep a shop.(King, 1958) Stapley notes that James was encouraged in this by lobbying from the royal physician Théodore de Mayerne, who pressed for a formal separation of grocers from apothecaries to make enforcement of the new Pharmacopoeia practical.(Stapley, 2024) The Charter justified the separation by citing that “very many Empiricks and unskilful and ignorant Men” in London compounded “unwholesome, hurtful, deceitful, corrupt, and dangerous Medicines.”(Charles R.B. Barrett, 1905) The Charter gave the Society jurisdiction over apothecaries within London and seven miles of the City.(Charles R.B. Barrett, 1905)

Running in a different direction, the Herbalists’ Charter of 1543 granted protection of a more expansive kind: it gave every person with knowledge and experience of herbs, roots, and waters the right to use and minister them according to their skill and experience, providing legal cover for lay herbal practitioners against prosecution by the College of Physicians.(Stapley, 2024)

The Physician-Apothecary Struggle

The apothecary was originally conceived as the “physician’s cook” whose sole function was to carry out the physician’s orders; the crux of the conflict was the apothecary’s aspiration to prescribe rather than merely compound.(King, 1958) Because there were not enough physicians and their fees were too high, apothecaries filled a real medical vacuum in early eighteenth-century England, actively practicing medicine despite legislation and prosecution.(King, 1958)

The Rose Case of 1703-4, in which the House of Lords reversed a conviction of apothecary William Rose for practicing medicine without a license, was an epoch-making legal decision that effectively permitted apothecaries to advise patients.(King, 1958) Yet apothecaries could not legally charge fees for advice and could only charge for medicines, creating systematic incentives for overprescribing.(King, 1958) King argues that the struggle illustrates what happens when two competing professional groups each have an impulse to expand into each other’s domain.(King, 1958)

The Apothecaries Act of 1815 established the Society as a formal examining and licensing body for apothecaries throughout England and Wales, requiring all persons practicing as apothecaries to pass examination.(Charles R.B. Barrett, 1905) The first prosecution under the Act was against John Warburton for practicing without qualification, establishing the enforceability of the new regime.(Charles R.B. Barrett, 1905)

The mid-nineteenth century produced the next major reorganization of British medical regulation. In 1854, Mr Brady’s medical reform bill was presented to Parliament with the aim of eliminating unlicensed practice by restricting medicine to those qualifying from orthodox medical schools; the outcry from Coffin’s botanic medicine supporters and their parliamentary allies was large enough to defeat it.(Stapley, 2024) The Medical Act of 1858 that followed was a more politically sustainable compromise: it established the General Medical Council as a registration authority, but its clause XXXII merely directed that unregistered practitioners could not recover medical fees in a court of law, rather than criminalizing their practice outright; the GMC simultaneously refused entry on the register to women.(Stapley, 2024) In 1864 the National Association of Medical Herbalists was founded, and when a royal commission was appointed in 1881 to suppress unlicensed practitioners, the Association successfully demonstrated that its members were trained and examined in herbal medicine, materia medica, therapeutics, anatomy, and physiology — and pointed to the large numbers of dependent patients in industrial areas who relied on herbal practitioners — averting suppression.(Stapley, 2024)

American Deregulation and Re-Regulation

American licensing followed a radically different trajectory. As Starr documents, American physicians’ quest for professional status from the 1760s onward was blocked by popular resistance, internal division, and an inhospitable economic environment; licensing authority had little more than honorific value, and the Jacksonian backlash in the 1830s–1840s crippled their ambitions for a half century.(Starr, 1982) Between 1826 and 1851, numerous states repealed existing medical licensing legislation, reflecting egalitarian democratic values and an aversion to professional monopoly; by the time of the Civil War, no effective medical licensing existed in any state.(Haller, 1999) Ohio did not regulate medical practice between 1833 and 1868; not until 1900 did Ohio law require candidates for licensure to pass an examination in all branches of medicine.(Haller, 1999)

Mid-nineteenth-century American medical schools were proprietary businesses offering two identical four-month lecture terms with no graded curriculum, no written examinations, no laboratory work, and students often graduating without ever examining a patient.(Ludmerer, 1985) Diploma mills represented the most extreme corruption, with John Buchanon selling an estimated 60,000 fraudulent medical diplomas at prices up to $200, including to two-year-old children.(Ludmerer, 1985) The commercial logic of proprietary schools structurally prevented reform: schools that raised standards lost students to competitors.(Ludmerer, 1985)

Thomsonism helped repeal medical licensing laws that had restricted botanical practice, becoming a dominant popular medical movement in the 1820s-1830s with 167 authorized agents in 22 states.(Gevitz (ed.), 1990) Starr provides a precisely dated sequence of the repeal wave: licensing laws were dropped in Alabama in 1832, Mississippi in 1836, South Carolina, Maryland, and Vermont in 1838, Georgia in 1839, New York in 1844, and Louisiana in 1852. As Starr argues, what fundamentally destroyed licensure was the public’s suspicion that it expressed professional favor rather than genuine competence.(Starr, 1982)

The constitutional legitimacy of licensing was settled in 1888 when the issue came before the U.S. Supreme Court in Dent v. West Virginia. Justice Stephen Field, delivering a unanimous opinion, held that states could require professional education and examination to protect society from incompetent practitioners: “Few professions require more careful preparation.”(Starr, 1982) The decision established that medical licensing was a legitimate exercise of state police power, not an unconstitutional abridgment of the right to pursue a lawful calling — provided the requirements applied equally to all practitioners.

The AMA itself was a minor force for most of the nineteenth century — by 1900 it had only eight thousand members out of roughly 110,000 American physicians, and another 77,000 physicians belonged to no professional association at all.(Starr, 1982) The transformation came in 1901, when a constitutional reorganization created a House of Delegates fed by state societies that themselves federated county organizations. Henceforth, physicians could not belong to any higher professional association without first joining their county society. From eight thousand members in 1900, the AMA rose to seventy thousand by 1910 — half the physicians in the country.(Starr, 1982) From this period dates the organisational capacity that “organised medicine” would deploy in licensing and regulatory battles for the next century.

Licensing as Professional Exclusion

The AMA’s founding 1847 code of ethics included a consultation clause prohibiting orthodox physicians from consulting with homeopaths, used as the primary weapon of professional exclusion.(Gevitz (ed.), 1990) The 1910 Flexner Report decimated both homeopathic and eclectic medical education through standardization demands.(Gevitz (ed.), 1990) In October 1935, the AMA’s Council on Medical Education announced that after July 1, 1938, it would no longer carry sectarian schools of medicine on its approved list, a decision that effectively ended eclectic medical education’s future.(Haller, 1999)

In 1935 the AMA excluded all sectarian institutions from its approved list; New York Homeopathic Medical College responded by renaming itself New York Medical College.(Gevitz (ed.), 1990) Eclectic leaders answered licensing campaigns with their own transparency arguments: Joseph R. Buchanan proposed requiring every physician who signed a death certificate to identify the school of practice to which he belonged, insisting that this would do more than medical legislation to weed out quacks.(Wilder, 1904)

Osteopathic Licensing Battles

The licensing struggles of osteopathic physicians illustrate how a new profession negotiated the practical meaning of “practice of medicine” before any state had decided what to do with it. In 1893 regular physicians, working in cooperation with the homeopathic and eclectic medical societies, introduced a bill into the Missouri House requiring that anyone practicing osteopathy be a graduate of a reputable medical school (Gevitz, Norman, 2004). The same year, Charles Still, the founder’s son, was authorized for arrest in Minnesota after treating children during a diphtheria epidemic without a license (Gevitz, Norman, 2004). Governor William Stone vetoed a subsequent Missouri osteopathic licensing measure on the grounds that osteopathic practitioners were insufficiently educated: “Medicine is a science,” he declared. “A judicious practice of it requires a good general and fundamental education” (Gevitz, Norman, 2004). Stone’s successor, Lon Stephens, himself an osteopathic patient, signed the licensing measure into law on March 3, 1897, making Missouri the first state to recognize osteopathic practice (Gevitz, Norman, 2004).

The central legal question in the decades that followed was what “the practice of medicine” actually meant. MDs argued for the broadest possible construction of the phrase; DOs maintained that “medicine” in practice-of-medicine statutes referred only to administering drugs and nothing more (Gevitz, Norman, 2004). A Kentucky Court of Appeals ruling captured the DOs’ position precisely: the court granted a permanent injunction against the state board from interfering with any DO “so long as he confines himself to osteopathy, without the use of medicine or surgical appliances” (Gevitz, Norman, 2004). Mark Twain appeared before the New York State Assembly in 1901 on behalf of a bill legalizing osteopathy, telling a gallery of supporters: “The State stands as a mighty Gibraltar clothed with power. It stands between me and my body and tells me what kind of doctor I must employ” (Gevitz, Norman, 2004). By 1901 fifteen states had established laws regulating osteopathic practice, covering Missouri, Michigan, Iowa, Illinois, Tennessee, California, and eight others (Gevitz, Norman, 2004).

Licensing victories created new forms of conflict. In Iowa, the legislature granted the medical board power to accredit osteopathic schools, and after a cursory look at their catalogs the board rejected all osteopathic colleges, effectively preventing any DO from practicing in the state despite what the law appeared to authorize (Gevitz, Norman, 2004). By 1913, thirty-nine states had passed osteopathic practice laws, but only seventeen of those provided for independent osteopathic boards; ten years later the figures had risen to forty-six states with laws and twenty-seven with independent boards (Gevitz, Norman, 2004). The independent board became the profession’s primary institutional defense against medical board control.

The Medical Freedom Campaign

The re-establishment of licensing in the late nineteenth century did not proceed uncontested. Alternative practitioners organized sustained “medical freedom” campaigns arguing that patients had a constitutional right to choose their own healers. The case was framed primarily in terms of civil liberties: Americans were guaranteed the right to elect political representatives according to their political beliefs and to choose a religious faith according to their spiritual convictions — why should they not have the right to choose physicians according to their medical beliefs?(Whorton, 2002) This was not merely rhetorical positioning; it reflected a coherent Jacksonian-era principle that professional monopoly in medicine was as objectionable as monopoly in commerce or religion.

The argument attracted unlikely supporters. Mark Twain testified in favor of licensing osteopaths before the New York state legislature, framing the issue in libertarian terms that cut across partisan lines: “What I contend is that my body is my own — at least I have always so regarded it. If I do harm through my experimenting with it, it is I who suffer, not the State.”(Whorton, 2002) Twain was not endorsing any particular form of sectarian medicine; he was invoking the individual sovereignty argument that made medical freedom campaigns politically viable in a democratic republic.

Christian Science practitioners found a different path around licensing requirements: in states that refused to recognize religious healing as distinct from medical practice, they circumvented licensing statutes by not charging for their services, since the laws did not interfere with free medical assistance. Practitioners made it quietly known that they were willing to accept voluntary expressions of gratitude.(Whorton, 2002) The AMA denounced the arrangement as allowing any “shrewd and conscienceless exploiter of human credulity” to defy the law “provided the knave takes the precaution to call the cult a ‘religion’” — language that reveals how much the licensing struggle was understood by orthodox practitioners as a moral contest, not merely an administrative one.

Key Debates

Public Safety versus Professional Monopoly

The central tension in medical licensing has always been whether regulation primarily protects the public from incompetent practitioners or protects established practitioners from competition. The English guild system explicitly served both functions. The American deregulation of the 1830s-1850s reflected democratic skepticism that physicians deserved monopoly privileges, while the re-regulation of the 1880s-1910s was driven by both genuine concern about educational standards and the desire to eliminate sectarian competitors.

The Baker Perspective

Contemporary Relevance

Medical licensing remains the primary legal mechanism for controlling who may practice medicine. Contemporary debates about scope-of-practice laws (nurse practitioners, physician assistants, naturopathic doctors), interstate licensure compacts, and the regulation of telemedicine recapitulate historical tensions between access and gatekeeping. The historical record demonstrates that licensing has always served both public protection and professional self-interest, and that distinguishing between the two requires careful attention to who benefits from specific regulatory arrangements.

Questions for review:

• The Barrett evidence on the Society of Apothecaries is very rich for the English licensing story.
• The Ludmerer evidence provides the American re-regulation narrative but from the perspective of the reformers.
• The Baker evidence cards need targeted extraction for licensing content specifically.
• The Flexner Report deserves either its own page or a fuller section here.

See Also

• medical-education
• eclectic-medicine
• homeopathy
• college-of-physicians
• society-of-apothecaries
• flexner-report
• heroic-medicine

Sources

Evidence cards used in this entry:

Editorial Notes

Gaps the encyclopaedia compiler flagged for future evidence work, collected from inline markers in the body and frontmatter.

The Baker Perspective