Re-blogged with permission from A Fundamental Flaw by Nigel Poole QC
If your house is built on soft sand you will not prevent it falling down by mending the roof. The continuing attempts to amend Lord Saatchi’s Medical Innovation Bill will not cure its fundamental flaw. This Bill needs more than patching up, it needs to be be completely rebuilt.
The premise of the Bill is that the current law of clinical negligence is a significant obstacle to responsible medical innovation. Lord Saatchi came to this view because he believed that negligence law mandates adherence by doctors to a standard treatment even when that treatment is known to fail. This extraordinary misunderstanding of the law gave rise to the Bill.
If the Saatchi Bill team has truly listened to doctors, researchers, lawyers and patients, it would know by now that the fundamental basis of the Bill is flawed.
The first people who would report that clinical negligence law is an obstacle to innovation would be doctors and those who represent doctors in litigation. The Medical Protection Society and the Medical Defence Union have said in clear terms that they do not believe that doctors are prevented from innovating by reason of clinical negligence law. The British Medical Association and the Academy of Royal Medical Colleges concur. The NHS Litigation Authority and the Medical Research Council do not support the Bill.
What of the experience of patients? I have not yet seen one convincing example of a patient from whom innovative treatment has been withheld because the doctor feared being sued. There have been examples cited where the NHS would not fund the treatment or the Doctor has said he would be subject to disciplinary proceedings if he gave the treatment, but those are irrelevant to this Bill.
In any event, if a doctor told a patient that he/she would not give a certain treatment because the patient might sue them, that would suggest that the doctor thought that the treatment would not be of any benefit and might well harm the patient. A patient could not sue a doctor for giving beneficial treatment nor for giving innovative treatment where there were no other viable treatment options, there were grounds for believing that the innovative treatment might help, and the patient had fully consented to the risks. The Patients Association and AvMA have both opposed the Medical Innovation Bill as have several charitable groups such as the British Heart Foundation, the Motor Neurone Disease Association and Parkinsons UK.
If there are deficiencies in medical innovation, they are not due to the current law of clinical negligence. The Bill has nothing to say about funding of research, resources for new treatments within the NHS, the regulation of new treatments or professional regulation of doctors.
If peers and MPs are willing to listen to the many doctors’, researchers’ and patients’ bodies that have spoken out against this Bill, then they will ensure it does not become law. Perhaps there could then be a more sensible look at the true impediments to medical innovation.
It is now clear that Lord Saatchi has made the wrong diagnosis. It is time for parliament to call a halt to this Bill.