Re-blogged with permission from Watering Down Patient Protection by Nigel Poole QC
The Medical Innovation Bill was promoted on the basis that patients would be protected by stringent requirements for doctors to secure agreement to proposed innovative treatment.
In its current form the Bill does not require doctors to obtain any agreement to proposed treatments and the Saatchi Bill team has now confirmed why.
There has also been pressure to turn the requirement to consult colleagues into a requirement to obtain colleagues’ written consent. These amendments do not give effect to that suggestion. Senior doctors consulted by Lord Saatchi expressed concern about giving formal written consent to another doctor’s proposed course of treatment, without knowing the full history and other circumstances, while they would be relaxed about expressing a view of the soundness of the doctor’s proposal as described to them. Lawyers consulted were also concerned about a possible new form of legal liability for consenting doctors. The requirement to record views in the patient’s notes should introduce the necessary formality, transparency and accountability, while avoiding both of these objections.
— Saatchi Bill explanatory notes on amendments of 04 December 2014
The Bill removes the possibility of patients obtaining redress if they are harmed by doctors who make a negligent decision to provide treatment which is not within the existing range of accepted treatments.
Fearful of removing the degree of patient protection the law of negligence provides, the Bill has at various stages of its gestation laid down other requirements for doctors to follow. Those requirements are very different now than they were at the time that Lord Saatchi passed to the Department of Health an 18,000 signature e-petition supporting the Bill. We have come a long way from the original intentions:
[The Bill] was drawn up with the help of the best legal and medical minds, and stipulated that, to innovate, doctors must have patient consent and the agreement of other senior medical experts and practitioners.
Supporting the Bill in April 2014 Professor Walker was reassured that:
…the Bill obliges the doctor to seek agreement from peers.
And Lord Saatchi in May this year:
Following the consultation, the Bill that is presented to Parliament in its final form will go further than the Mental Health Act in safeguarding patients. The Mental Health Act requires the authorisation of two doctors before an abortion or sectioning in a mental institution can take place lawfully; the Medical Innovation Bill requires the Multi Disciplinary Team in the hospital to approve the proposed innovation in advance. This is a most severe test, but however severe, it is better than the current position in which any departure from standard procedure can lead to the end of a doctor’s reputation and livelihood.
These previous statements are no longer relevant. The Bill has changed significantly. All it requires a doctor to do is to obtain the views of one other suitably qualified doctor. There is no requirement for that other doctor to have seen the patient nor even to know the patient’s full history and other circumstances. There is no requirement that the other doctor is independent.
If you supported the Bill in its previous form, please take another look.